Schulze v Russell [2022] NSWLEC 1747

Land and Environment Court New South Wales

Medium Neutral Citation: Schulze v Russell [2022] NSWLEC 1747 Hearing dates: 08 December 2022 Date of orders: 08 December 2022 Decision date: 08 December 2022 Jurisdiction: Class 1 Before: Douglas AC Decision: The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight or views – frivolous application Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A, S 14A, 14B, 14C, 14E, 14F Cases Cited: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hinde v Anderson & anor [2009] NSWLEC 1148 Tooth v McCombie [2011] NSWLEC 1004 Category: Principal judgment Parties: Lynette May Schulze (Applicant) Jones Russell (Respondent) Representation: L Schulze (Self represented) (Applicant) J Russell (Self represented) (Respondent) File Number(s): 2022/230820 Publication restriction: Nil

Judgment

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

Background 1. Lynette Schulze, the applicant, occupied her property in Port Macquarie in 1980, while the respondent, Jones Russell, purchased and occupied his property about 4 years ago, but now leases it to tenants. The parties share a north-south rear boundary and the applicant's land is to the west of the respondent's property. 2. The trees comprise a row of about seventeen Syzygium sp. (Lilly Pilly) (the trees), which are shown at question 2 of the Tree Dispute Claim details (Exhibit B) to be growing parallel with and adjacent to the common boundary, on the respondent's land. The applicant noted that the trees were planted in 2018 and were about 2.5 metres (m) tall. 3. Ms Schulze nominated four windows (W) for her claim of severe obstruction of sunlight, with W1 – W3 facing east towards the respondent's property, and W4 facing north. W1 is at the northern end of the applicant's wide rectangular dwelling, W2 is from the adjacent room, while W3 is in a room on the dwelling's south-eastern corner. 4. For the applicant's claim of severe obstruction of views from a dwelling, W1 is viewing point V2, W2 is viewing point V3, W3 is viewing point V4, while V1 is from a patio between W2 and W3, which connects to the dwelling's kitchen/ living area. All viewing locations face towards the east and the applicant's view is gained over the roof of the respondent's dwelling. 5. Ms Schulze submitted that in the past she had kept the trees trimmed to near the height of the fence, but the respondent's tenants desire increased privacy and want the trees to grow taller. Mr Russell submitted that he would prefer that the trees grew to a height of about 1.5 m above the fence height. 6. In her application, Ms Schulze claimed that the respondent's tenants "are verbally and physically aggressive when I have attempted to cut the top of the hedge". While Mr Russell had granted the applicant the right to prune the height of the hedge after he began leasing the property and ceased cutting the hedge himself, Ms Schulze claimed that this was becoming impossible due to the respondent's refusal to trim the hedge, and because of her diminishing physical capacity to undertake the works. 7. As a consequence, Ms Schulze 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: Top of the hedge to be trimmed to fence height every 3 months, or Hedge to be removed.