Morgan v Bennett [2022] NSWLEC 1744

Land and Environment Court New South Wales

Medium Neutral Citation: Morgan v Bennett [2022] NSWLEC 1744 Hearing dates: 10 November 2022 Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The orders of the Court are: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – other causes of sunlight obstruction Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Pts 2, 2A, ss 7, 14A, 14B, 14C, 14E, 14F Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Category: Principal judgment Parties: Jane Morgan (Applicant) Paul Bennett (First Respondent) Joanne Bennett (Second Respondent) Representation: J Morgan (Self represented) (Applicant) P Bennett (Self represented) (Respondents) File Number(s): 2022/221472 Publication restriction: No

Judgment

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

Background 1. Ms Morgan, the Applicant, and Mr and Mrs Bennett, the Respondents, enter their Allambie Heights properties from separate streets, and share a north – south rear boundary. Ms Morgan occupied her property in 2005 and added a second storey in 2008. 2. The Applicant claims that twelve trees planted close to the common boundary in the Respondents' yard severely block sunlight to nominated windows of her dwelling, particularly during winter. Ms Morgan also claims that the trees lose their leaves at least 2-3 times each year for a period of about one month, necessitating daily sweeping of her backyard to clear the "overwhelming" quantity of leaves, which also "clog up the pool cleaner", and "are a fire hazard". 3. The trees comprise nine Syzygium sp (Lilly Pilly), one Camellia sasanqua (Camellia) and one Callistemon sp (Bottlebrush) (the trees), planted in about 2013 - 2014 along the common boundary as well as one long established Lophostemon confertus (Brush Box) (tree 12) located near the north-eastern corner of the Respondents' yard, but well clear of the common boundary. 4. When the application was made to the Court, the trees had grown tall and fairly broad. Based on photographs provided by the Applicant, they had reached a height of about 7- 8.5 metres (m). The Brush Box is about 13 m tall with a dense broad domed canopy, typical of the species. 5. The Applicant nominated three west facing windows (W1 – W3) and a glass door (D1) on the dwelling's ground floor, and a further three west facing windows (W4 – W6) on the first floor, for assessment of obstruction of sunlight. The Applicant submitted that "no unobstructed sunlight is available in any of the windows on the western side of her dwelling", and that W1 – W3 and D1 receive less than one hour of filtered afternoon sunlight during the whole year, including only about 15 – 30 minutes of filtered afternoon sunlight in winter. Ms Morgan also alleged that windows W4 – W6 received only about 30 minutes of sunlight. 6. As a consequence, Ms Morgan submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act"), seeking the following orders: Prune the hedge at a height of 2.5 metres, equivalent to the height of the top of the dividing fence. Maintain the hedge by annual pruning at the end of each summer to a height of 2.5 metres, equivalent to the height of the top of the dividing fence.