Djordjevic v Nakhla [2023] NSWLEC 1211

Land and Environment Court New South Wales

Medium Neutral Citation: Djordjevic v Nakhla [2023] NSWLEC 1211 Hearing dates: 02 February 2023 Date of orders: 02 February 2023 Decision date: 02 February 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): future damage to property claimed – no likely damage in near future – high hedges – severe obstruction of sunlight to a window claimed – obstruction of sunlight not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Pt 2 s 7, 8, 9, 10, 12, Pt 2A s14A, 14B, 14C, 14D, 14E, 14F Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hendry v Olsson [2010] NSWLEC 1302 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Doug Djordjevic (Applicant) Steven Nakhla (Respondent) Representation: D Djordjevic, (Self-represented) (Applicant) S Nakhla (Self-represented) (Respondent) File Number(s): 2022/338593 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. 1. COMMISSIONER: Doug Djordjevic, (the applicant), and Steven Nakhla, (the respondent), share a common north – south rear boundary between their properties in Casula. The southern half of the applicant's eastern boundary is the northern third of the respondent's western boundary. The remainder of each parties' rear boundaries are common with the parties' side neighbours. 2. The applicant purchased his property in 2007 and built a new two-storey dwelling in 2018-2019 after entirely clearing his land. Along with the dwelling, Mr Djordjevic installed a fibreglass pool in his property's south-eastern corner, and the pool surrounds were tiled up to the parties' common boundary. A steel panel back fence, approximately 1.8 metres (m) tall, separates the properties. 3. In 2017, the respondent planted two Waterhousea floribunda (Weeping Lilly Pilly) and one Olea europa (European Olive) tree in a large planter box, parallel with and close to the common boundary. The applicant had the impression that the trees were planted in 2019 or 2020, as the trees were insufficiently tall to protrude above the fence when they were planted, and during their initial establishment. 4. Mr Nakhla submitted that the trees significantly contribute to his privacy by mitigating oversight by the applicant's family from an upstairs balcony and windows, enhance his garden design, and provide protection from wind and sun. He also noted that the European Olive was planted south of the common boundary with the applicant and submitted that it thus should not be considered as part of the applicant's claim. 5. Once the trees grew to be visible above the boundary fence, the applicant sought to have the respondent remove them, but this request was denied. Consequently, Mr Djordjevic made an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act). 6. Under both Pt 2 and Pt 2A of his application, Mr Djordjevic proposed that the Court orders removal of the trees. 7. In his Pt 2 application, Mr Djordjevic claims that the trees, especially the Lilly Pilly's, are causing damage to his pool and pool surrounds as a result of debris from stamens, leaves and berries falling onto his land and blowing into his pool, and consequent damage to his pool equipment. Mr Djordjevic also anticipated future damage to his pool. 8. At question 5 of his Tree Dispute Claim Details (Form G), for his application under Pt 2A of the Trees Act, Mr Djordjevic submitted that his dwelling was "designed, prior to the installation of the trees, to take in most of the morning sun", and that the house does not have "windows facing north, south or west in our living areas". He claimed that the respondent's trees form a hedge which severely obstructs sunlight to windows of his dwelling, and to his pool, particularly during summer.