Ingham v Pettigrew [2016] NSWLEC 1002

Land and Environment Court New South Wales

Medium Neutral Citation: Ingham v Pettigrew [2016] NSWLEC 1002 Hearing dates: 1 December 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 45. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); zoning of land; environmental management zone; hedges; obstruction of sunlight; obstruction of views; orders for tree pruning; orders for tree removal. Legislation Cited: Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140 Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Second Reading Speech, NSW Legislative Council,18 May 2010 Category: Principal judgment Parties: Anna Ingham (Applicant) Gavin Pettigrew (Respondent) Representation: Anna Ingham, litigant in person (Applicant) Mr G Carolan, barrister (Respondent) Mr J Chapman, solicitor (Respondent) File Number(s): 20676 of 2015

Judgment

Background 1. On the outskirts of Blackheath, abutting Blue Mountains National Park, residents live on large lots in a leafy environment. Garden landscapes comprise a mixture of native and exotic plants offset by the native bushland of the neighbouring national park. 2. Ms Ingham ('the applicant') has owned her property since 2001. It is a long narrow property with her dwelling set back from the road frontage to the south and a roughly northerly outlook toward the national park from the rear of her dwelling. Here at the back of her dwelling are her living room and kitchen, with large windows, and an outdoor raised deck. She says the dwelling was designed to take advantage of the northerly aspect, maximising access to sunlight and available views. Photos taken circa 2000 (the property was owned by her family before Ms Ingham became the sole owner) show an open outlook from the rear of her dwelling and afternoon sunlight with its accompanying long shadows stretching across the northern end of the living room. 3. On the neighbouring properties to each side of Ms Ingham, close to her side boundaries, are hedges of Leyland Cypress trees – XCupressocyparis leylandii 'Leighton Green'. Until recently, each hedge contained 76 trees planted closely in two straight rows roughly parallel with the common boundaries. 4. To her east, the neighbouring hedge extended from slightly to the south of Ms Ingham's dwelling, past the dwelling and for a considerable distance north of her dwelling next to the rear yard, until that neighbour had 30 of the trees removed at the southern end of the hedge, including those closest to Ms Ingham's dwelling. 5. To her west, the southern end of Mr Pettigrew's hedge is close to Ms Ingham's dwelling and extends along the common boundary, further northward than the other neighbouring hedge. Mr Pettigrew ('the respondent') also has another matching hedge on his western boundary. 6. According to Ms Ingham both hedges were 2-3 metres tall when she first owned her property and her dwelling had good access to sunlight and views. Since then the trees have grown vigorously, as Leyland Cypress will do in an environment as conducive as this. Mr Pettigrew's hedge has not been pruned and is around 16 metres tall. 7. Ms Ingham finds her access to sunlight and views restricted by both hedges. She has unsuccessfully tried to reach an agreement for pruning the trees with both neighbours, and has therefore applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking a remedy. She has had to make two applications, one against each neighbour. The orders she seeks are the same for both: removal of trees in the row closest to the common boundaries (trees in both hedges are planted in two close rows) and trees in the second row to be pruned to 3.6 metres above ground level and maintained with annual pruning to that height. Neither respondent has proffered alternative orders. 8. The matters were heard in succession on the same day. The onsite hearing allowed viewing of trees on both respondents' properties and of the situation on Ms Ingham's property. Ms Ingham provided shadow diagrams (two sets: one by Mr Klauzner, architect, and another by Mr Burns, building designer) to demonstrate effects of the hedges on sunlight at different times of the day during different seasons. She also provided an arboricultural assessment by Mr Draper, arborist, and a survey plan including tree height data by Mr Bowler, registered surveyor. Mr Pettigrew provided two tree reports (Mr Smith, arborist, and a report with two authors, Mr Ackroyd and Mr Stamper, arborists) and a statement and diagrams by Mr Starr, architect. Mr Draper and Mr Starr attended the hearing and gave evidence.