El Khoury v Hajjar [2021] NSWLEC 1481

Land and Environment Court New South Wales

Medium Neutral Citation: El Khoury v Hajjar [2021] NSWLEC 1481 Hearing dates: 13 April 2021 Date of orders: 13 April 2021 Decision date: 13 April 2021 Jurisdiction: Class 2 Before: Douglas AC Decision: The orders of the Court are: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – risk of injury related to illness, allergy or similar medical condition – application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, 14A, 14B, 14E, 14F Uniform Civil Procedure Rules 2005 - Expert Witness Code of Conduct, Schedule 7 Cases Cited: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Holland v Bell [2017] NSWLEC 1322 Hurditch v Staines [2008] NSWLEC 1351 Stevens v Russell [2016] NSWLEC 1233 Tuft v Piddington [2008] NSWLEC 1249 Category: Principal judgment Parties: Rose El Khoury (Applicant) Danielle Hajjar (Respondent) Representation: J Khoury (Litigant in person - Agent) (Applicant) S Hajjar (Solicitor) (Respondent)

Solicitors: The Saljar Group Pty Ltd (Respondent) File Number(s): 2020/290594 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. Mrs Rose El Khoury, the applicant, owns a property in Roselands, which was purchased in 2008. A new dwelling was constructed in 2013, replacing that which existed prior. Mrs El Khoury shares a rear boundary with the respondent, Mrs Danielle Hajjar. 2. A row of five Photinia and one Schefflera trees (the trees) are growing in the respondent's rear yard, roughly parallel with, and adjacent to the common boundary, along which a fence, approximately 1.8 metre high, separates the properties. The boundary runs from slightly north-west of north to south-east of south. An additional three Photinia's extend the respondent's aforementioned row of trees further southward, but these border the applicant's neighbours' property. 3. The applicant claims that some of the east facing windows of her dwelling receive limited sunlight as a result of the trees, particularly during mornings. She has submitted an application with the Land and Environment Court (LEC), pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act"), seeking orders for Mrs Hajjar to remove or prune the hedge, so as to restore direct sunlight to her windows, and rooms beyond. 4. At a directions hearing on 7 April, 2021, the Registrar granted the applicant's Agent, Mr John El Khoury, leave to file an additional late Part 2 Application, pursuant to s 7 of the Trees Act, seeking orders to prevent injury to any person, as a result of the trees. The applicant's Agent served this Part 2 Application, on the evening of 7 April, 2021. In allowing this late application, the Registrar also granted leave for Mrs Hajjar to submit an additional response to the LEC. 5. Directions of the Court, dated 22 February, 2021, appear to foreshadow this Part 2 application, as they include Schedule B, which outlines "Supplementary directions for an order to prevent injury to any person and the "injury" is an illness, allergy or similar medical condition. 1. Further to direction 6 of the principal directions in this matter, the applicant is to provide, by the close of business on 8 March, 2021, any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a "likely cause of injury to any person; 2. Any expert evidence concerning matters contained in 1 above is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005."