Sukkarieh v Goodwin [2023] NSWLEC 1759

Land and Environment Court New South Wales

Medium Neutral Citation: Sukkarieh v Goodwin [2023] NSWLEC 1759 Hearing dates: 20 June 2023 Date of orders: 20 June 2023 Decision date: 20 June 2023 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 – nature of a hedge – is hedge severely obstructing sunlight or views Legislation Cited: Trees (Disputes between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F Trees (Disputes between Neighbours) Regulation 2014, s 4 Cases Cited: McLaren v Lewis [2011] NSWLEC 1170 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Samar Sukkarieh (Applicant) Craig Andrew Goodwin (First Respondent) Louise Marie Goodwin (Second Respondent) Representation: S Sukkarieh, Self-represented (Applicant) C Goodwin, Self-represented (First Respondent) L Goodwin, No Appearance (Second Respondent) File Number(s): 2023/128294 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. Samar Sukkarieh, the applicant, owns a property in Toukley with her husband, and they share a side boundary with the respondents, Craig and Louise Goodwin. The rear of both parties' waterfront properties face north towards Budgewoi Lake and the boundary between the properties is oriented roughly east-west. 2. The applicant and her husband purchased their property in 2014 and lodged a development application (DA) with Wyong Shire Council in 2016 for the construction of a two-storey dwelling extending to about 4 metres (m) from the waterfront, in place of an existing old boathouse. The properties now fall under the jurisdiction of Central Coast Council (Council), which was established in 2016 upon the amalgamation of Gosford City Council and Wyong Shire Council. 3. Mr Goodwin objected to the DA as the proposed dwelling was to be much taller than the existing boathouse and to occupy a much larger footprint, and he opposed the proposed location, about 16 m closer to the waterfront than the respondents' dwelling and other neighbouring houses, which were constrained by a 20 m setback from the lake. Mr Goodwin called this 20 m setback area the flood zone. 4. In his objection to Council, included in Exhibit 1, Mr Goodwin noted that the proposed dwelling would significantly impact his family's existing water, jetty, and undulating landscape views across an arc from north to east, due to the imposing nature of the building's west side wall, which was planned to rise to a height greater than 9 m, within 1 m of the common boundary. Mr Goodwin stressed the negative impact on his family's privacy that would likely arise from potential oversight through four proposed first floor windows and from the west side of an open balcony located to the north of the first floor of the applicant's dwelling. 5. Though Council initially provided a report to Mr Goodwin which indicated that the applicant's development would not be supported, approval was granted in 2017. Conditions of consent required abatement of oversight which enhanced the respondents' privacy, but apparently there was no requirement for increased lake setback, or major design modifications. 6. The Goodwin's had purchased their property in 2008 and designed and constructed a dwelling with living areas at the rear to optimise water views through large glass doors, and open balconies. In anticipation of the applicant's development, the Goodwin's installed a studio on the east side of their back yard. Once the respondents' dwelling was in situ, this studio provided a physical barrier and some privacy between the respondents' rear living areas and the rear of the applicant's dwelling. Over subsequent years, the studio was occupied by the respondents' daughters. 7. The respondents' rear yard contained a swimming pool, but neither Mr Goodwin's daughters nor his wife were comfortable swimming with the spectre of oversight from the first floor of the applicant's dwelling. About five years ago, Mr Goodwin removed a Murraya paniculata hedge from his side of the common rear boundary as he deemed it unlikely to grow tall enough to sufficiently enhance privacy, and in its place, planted a hedge of Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo). 8. The bamboo established rapidly, and Mr Goodwin pruned it at a height he claimed was about 5.7 m – 6 m above ground level, which from photographs submitted by both parties appeared to be about halfway up the applicant's west facing first floor bedroom windows. The applicant claimed the bamboos' height was 9.5 m. Mr Goodwin appreciated the appearance of the established bamboo and its role in softening the imposing impact of the applicant's west side dwelling wall. 9. In early 2022, Mr Sukkarieh advised Mr Goodwin that the bamboo was brushing against the applicant's house during strong westerly winds, annoying him and disturbing his sleep. In mid-2022, Mr Sukkarieh told Mr Goodwin that he must prune the bamboo to a height of 2.5 m and claimed that this is the "legal height". Mr Goodwin refuted that the bamboo was subject to a height restriction of 2.5 m and thus refused such pruning because of the bamboos' privacy and aesthetic contributions to his family. 10. Consequently, Mrs Sukkarieh made an application, pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders for the respondents to "trim the hedge to the legal height", to remedy the bamboo severely obstructing sunlight to windows of her dwelling and severely obstructing views from her dwelling.