Land and Environment Court New South Wales Medium Neutral Citation: Saidi v Farajpour [2022] NSWLEC 77 Hearing dates: 1 June 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Class 2 Before: Moore J Decision: At [22] Catchwords: COSTS - costs application in tree dispute case - special costs rule applies - costs not to be awarded unless it is fair and reasonable to do so – costs' applicant only partially successful at substantive hearing of tree dispute application - not fair and reasonable to make any costs order for substantive hearing – costs' respondent seeks costs of costs' hearing - costs of costs' hearings conventionally follow the event - appropriate to order that costs applicant pay respondents' costs of costs' hearing - appropriate to make gross sum costs order for costs' hearing pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - actual costs discounted as conventionally appropriate - costs applicant ordered to pay costs' respondents' costs in the gross sum of $4875 within 28 days Legislation Cited: Civil Procedure Act 2005, s 98 Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, s 14F(c), Cases Cited: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 McDougall v Philip (2011) NSWLEC 1280 Category: Costs Parties: Samir Saidi (First Applicant) Kate Ann Saidi (Second Applicant) Ladan Farajpour (First Respondent) Mehran Farajpour (Second Respondent) Representation: Counsel: Mr S Saidi (First Applicant – in person) Ms H Kalarostaghi, solicitor (Respondents) Solicitors: Hunt & Hunt (Respondents) File Number(s): 132861 of 2021 Publication restriction: No EXTEMPORE Judgment 1. HIS HONOUR: In these proceedings, the Applicants were before Acting Commissioner Galwey in a tree dispute proceeding that was filed in May 2021 pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). They sought orders concerning trees that were located on a neighbouring property, on the basis that they severely impacted the sunlight to their property. The proposed orders set out, on page 2 of the tree dispute application, were in the following terms, in the alternative. Orders 1 to 4 were that: 1 The Respondent will remove the hedge and replant the hedge with an appropriate replacement and within 30 days. 2 The removal of the hedge will be carried out by appropriate qualified licensed and insured contractors. 3 The Respondent will pay for the removal of the hedge and the replanting of the hedge. 4 Thereafter the Respondent will maintain the replanted hedge at 2.5 metres above ground level on the identified address on a regular basis and at their expense. 1. In the alternative to those four proposed orders, the alternative suite of orders were as follows: 1 The Respondent will prune the hedge so that it will be at a height of 2.5 metres above the ground level of the nominated street address within 30 days. 2 The pruning of hedge will be carried out by appropriately qualified, licensed and insured contractors. 3 The Respondent will pay for the pruning of the hedge. 4 The Respondent will maintain the hedge at a height of 2.5 metres above ground level at the nominated address on a regular basis and at their expense. 1. The matter came to be heard by Acting Commissioner Galwey, an acting commissioner of the Court, who is a qualified arborist with extensive experience. The hearing took place on 20 October 2021 and, on 16 February 2022, the Acting Commissioner gave a considered decision concerning the tree dispute application. He outlined, in paragraph 1 of his decision, the background to the dispute. 2. At paragraph 12, the Acting Commissioner found that the trees in the hedge on the Respondent's property did severely obstruct sunlight to the Applicants' windows - that finding provided an appropriate jurisdictional basis to consider further matters that are mandated in Pt 2A of the Trees Act. 3. In paragraphs 6 and 7, the Acting Commissioner also turned to address the question of whether the trees constituted a hedge. That was a further necessary jurisdictional test requiring to be addressed by the Acting Commissioner. 4. In paragraph 7, he explained that, although the row of trees that had been planted were partially Himalayan Cypress trees and partly Brush Cherry trees, they had been planted to form a continuous dense screen along the southern boundary of the Respondents' property. The Acting Commissioner also found that they were well over 2.5 metres high, noting that there were estimates from an arborist giving evidence in the proceedings that they were between seven and nine metres tall. 5. At the conclusion of paragraph 7 of the Acting Commissioner's judgment, he explained why he was satisfied that all 11 trees in the Tree Dispute Application were planted so as to form a hedge, thus engaging Pt 2A of the Trees Act. 6. The Acting Commissioner, having held that there was a severe obstruction to sunlight and that the planted trees did in fact constitute a hedge, next turned to address matters that he was required to consider pursuant to the Trees Act giving rise to whether or not he should exercise the discretion with which he was invested to order intervention with the trees. 7. There were several matters that the Acting Commissioner needed to address in that regard. One was what would be the consequences of the impact on the trees if he was to order pruning of them and, second, if he was to order pruning, what was the appropriate height for that purpose. Although out of order in the scope of his decision, it is convenient now to address the matters that the Acting Commissioner turned to in paragraphs 31 to 33 of his decision. 8. During the course of that portion of his judgment, the Acting Commissioner explained why it was not be appropriate to prune the Himalayan Cypress trees because of the adverse impact on those trees and the general longer term, my words, futility in doing so. He then stated that in paragraphs 33 and 34 that the Brush Cherry trees would respond well to pruning and reducing their height and maintaining them would result in not only a restoration of sunlight to the Applicants' property but ensuring privacy between the parties. He explained why pruning to a height range of four to five metres would be appropriate, because that was his estimation of what the trees height had been in 2013. 9. Accordingly, he made orders that had the following effect, set out in detail at paragraph 38 of his decision: 1. First, the Himalayan Cypress trees were to be removed; 2. Second, they were to be replaced by planting of additional Brush Cherry trees; 3. Third, that the existing Brush Cherry trees should be pruned to a height of no more than four metres above ground level, measured from the base of each tree; and 4. Finally, that there was to be a mandated pruning on an annual basis to ensure that the Brush Cherry trees, as existing, and the Brush Cherry trees to be planted, were pruned in a fashion to continue to maintain sunlight access to the Applicants' property. 1. Importantly, at paragraphs 16 and 17 of the Acting Commissioner's judgment, he addressed the question of what was the state and extent of sunlight available for the Applicants' property in 2013, that being the year in which the Applicants purchased their property. 2. He set out the fact that s 14F(c) of the Trees Act required him to consider the height of the trees as at the time the Applicants had acquired their property. He then set out a quotation from the decision of Commissioner Fakes in McDougall v Philip (2011) NSWLEC 1280, during the course of which that Commissioner explained the reasons why she had concluded that there should not be a beneficial improvement to an applicant's sunlight access greater than that which would have existed as at the date of the acquisition of the applicant's property. 3. At paragraph 23 of Commissioner Fakes' decision, she set out the relevant recommendation from the review of the Trees Act (that gave rise to the incorporation of Pt 2A, which is the "high hedges" provision). This report made it clear that additional solar access was not appropriate to be provided that greater than the access that was available to them at the time of the acquisition of the property. 4. The outcome was that, contrary to the orders that were sought in the Applicants' tree dispute application, the orders that the Acting Commissioner made (for the reasons he explained concerning the inappropriateness of pruning of the Himalayan Cypress trees, and why they should be replanted with Brush Cherry trees), the outcome for the Applicants' in the proceedings was significantly less than that was sought in their Tree Dispute Application. 5. In these proceedings, the special costs' regime that applies is that which is set by r 3.7 of the Land and Environment Court Rules 2007 - that is, it is not appropriate to consider making a costs order in proceedings relevantly pursuant to the Trees Act unless it is "fair and reasonable" to do so; that being contrary to the general proposition in civil litigation that costs will follow the event, as discussed by the High Court in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 (Latoudis v Casey). 6. The Applicants in these proceedings rely on r 3.7(3)(c), suggesting that the Respondents had acted unreasonably in circumstances leading up to the commencement of the proceedings. Whilst the First Applicant has outlined to me why it is said that the Respondents' responses to requested mediations and the like amounted to unreasonable conduct, that does not assist, given that the relief that was granted by the Acting Commissioner is, in my assessment, significantly less than that which was sought in the Tree Dispute Application. 7. The event, in the context of Latoudis v Casey, is the outcome of the proceedings. The Applicants have not received the outcome in the proceedings that they sought in their Tree Dispute Application. I am satisfied that, under those circumstances, it is entirely inappropriate to contemplate making a costs order in their favour, as it would not be "fair and reasonable" under the circumstances to do so. 8. Having said that, as I advised the First Applicant at the commencement of these proceedings, costs of costs hearings do conventionally follow the event, there is no reason in these costs' proceedings why I ought not make a costs order in favour of the Respondents, given my rejection of the Applicants' costs application. 9. I am advised by Ms Kalarostaghi that the Respondents' costs of preparation for, and appearance at, these costs proceedings is $7,500. Conventionally, it is appropriate to apply a discount to that amount, of between 65% and 75%, if I am to make a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005. 10. As I indicated, I am satisfied that, given the very modest amounts of money that are involved, to make a gross sum costs order would not only be desirable, but essential - given that if I was to suggest that the matter should go to assessment or subsequent negotiation there is at least the potential that further valuable time, both of the parties and of the legal system, would become enmeshed in such a matter. 11. The conventional discount is somewhere between 65% and 75% of the actual expended costs. I am satisfied, under the circumstances, it is appropriate to make an order at the low end of that range. I therefore make the following orders: 1. The costs application of the Applicants is dismissed; and 2. The Applicants are to pay the Respondents' costs of the costs' proceedings in the gross sum of $4,875 within 28 days of these orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2022