Tonoli v Rappo - [2010] NSWLEC 1320

Land and Environment Court

of New South Wales

CITATION: Tonoli v Rappo [2010] NSWLEC 1320

PARTIES:
APPLICANT
P. Tonoli
RESPONDENTS
M & G Rappo

FILE NUMBER(S): 20616 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Hedge, obstruction of sunlight, pruning ordered

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 02/11/2010

DATE OF JUDGMENT:
24 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Tonoli (litigant in person)
RESPONDENTS
Mr G Rappo (litigant in person)
Mrs M Rappo (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

24 November 2010

20616 of 2010 Tonoli v Rappo

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a dwelling in Killeaton Street St Ives against the owners of a Photinia hedge on an adjoining property in Collins Road.

2 The applicant contends that the hedge severely obstructs sunlight to several windows at the rear of his dwelling. He is seeking an order from the Court for the hedge to be reduced in height in order to restore the amount of sunlight received when he moved into his property.

3 The respondents contend that the applicant was aware of the existence of the hedge and a fence when he purchased the property. They assert that the applicant should have considered the fact that plants grow. They also state that as the applicant’s property is approximately 1m below the original soil level, there is inevitably going to be an issue with solar access.

4 An inspection of both properties was undertaken on the morning of the hearing and the hedge was measured at various points.

The applicant’s contentions and the evidence.

5 The applicant purchased his property in May 2006. The property is one of four dwellings (two dual occupancies) in a development approved in 2003 under State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability.

6 The rear of the applicant’s dwelling faces generally north. The respondents’ property forms the northern boundary of the SEPP 5 development. In the application, the applicant states that the hedge was 2.5 to 3m high when he purchased the property.

7 The windows said to be affected by the hedge are W1 – glass sliding doors from the living room (on the northern side of the dwelling), W2 - glass sliding doors from the dining room that face east, W3 a north-facing window from the dining room and W4 the north-facing kitchen window. There is a polycarbonate awning between W1 and W2. It is noted that glass sliding doors are deemed to be windows for the purpose of the Act (s 3).

8 W1 is approximately 8m from the dividing fence and W3 and W4 are about 5.5m from the fence. The fence is 2.1m high. The level of the paving at the rear of the dwelling is approximately 1m below the original soil…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tonoli v Rappo

Details

AGLC: Tonoli v Rappo [2010] NSWLEC 1320
Case: [2010] NSWLEC 1320
Decision Date: 24 November 2010

CaseChat Overview and Summary

The matter before the Land and Environment Court of New South Wales was an application by P. Tonoli against M. and G. Rappo under s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006. Mr. Tonoli alleged that a Photinia hedge on the respondents' property obstructed sunlight to several windows of his dwelling and sought an order for the hedge to be reduced in height. The respondents argued that the hedge had grown since the applicant purchased the property and that they should not be required to prune the hedge. The key issues were whether the hedge severely obstructed sunlight and whether the applicant's interests in having the obstruction removed outweighed any impacts on the hedge and the respondents.

The Court considered the evidence and found that the hedge complied with the requirements of the Act. It was satisfied that the applicant had made a reasonable effort to reach agreement with the owners of the hedge. The Court accepted the applicant's evidence that he had lost winter sun from the part of the dwelling in which he and his wife spent most of their time. The Court found that the increase in height of the hedge was enough to have caused a severe obstruction to sunlight to the windows on the northern side of the dwelling. The Court also found that the loss of sunlight to the applicant's dwelling outweighed any negative impact on the hedge or the respondents. Therefore, the necessary jurisdictional tests were met and the Court could make an order under s 14D.

The Court ordered that the respondents were to engage and pay for an AQF level 3 horticulturist or arborist to prune the part of the hedge that adjoins the applicant's property to a height of 4.2m to allow regrowth up to 4.5m. The work was to be completed within 60 days of the date of the orders. The applicant was to reimburse the respondents 50% of the cost of the initial pruning within 21 days of the receipt of a tax invoice for the completed work. The respondents were to maintain that section of the hedge to a height of 4.5m at their cost.

Orders