Simpson & anor v Wanasawage [2017] NSWLEC 1758

Land and Environment Court New South Wales

Medium Neutral Citation: Simpson & anor v Wanasawage [2017] NSWLEC 1758 Hearing dates: 27 July 2017 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at (14). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; cypress; severe obstruction of sunlight; orders for tree pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Peter Simpson (First Applicant) Ann Simpson (Second Applicant) Mana Wanasawage (Respondent) Representation: Peter Simpson and Ann Simpson, Litigants in Person (Applicants) Mana Wanasawage, Litigant in Person (Respondent) File Number(s): 133695 of 2017

Judgment

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

Background 1. Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') provides a means for property owners to seek relief from neighbouring hedges that obstruct sunlight or views. Naturally, trees may also cause other issues, but part 2A specifically limits the Court's jurisdiction to trees that are on adjoining land, that are planted as a hedge, and that severely obstruct either sunlight to windows of a dwelling or views from a dwelling. 2. When Mr and Mrs Simpson moved into their Glen Alpine home in 2000, a hedge of cypress trees grew around all boundaries of a neighbouring property's large rear garden. Mr Simpson says that, with the owner's consent, he pruned the neighbouring cypress trees nearest their dwelling, so that the trees were less than two metres above the top of the fence. 3. Sometime after Mr Wanasawage bought the neighbouring property in 2004, the Simpsons gained his consent to prune the trees again. They last did so in 2014. Since then they have not been able to reach agreement with Mr Wanasawage and the trees have grown taller. Because their windows no longer receive winter afternoon sun, they have applied to the Court seeking orders for all trees along the common boundary to be pruned to a height of 1.5 m above the top of the boundary fence. 4. Mr Wanasawage has pruned the trees recently, but only removed their lower branches. This has done little to change the Simpsons' circumstances. He also removed one tree that he says was nearly dead. 5. The Simpsons produced no shadow diagrams, but provided photographs taken during an afternoon in June 2016 showing shadows on windows of their dwelling. Mr Wanasawage rightly points out that one tree has been removed since then, but he also said he has not trimmed the tops of the trees because that is too difficult. A photograph he provided shows the Simpsons' northern wall, which faces the common boundary, mostly free of shadow at 1:43 pm, with shadow just beginning to touch the wall's western end. This photograph is taken in mid-May. He agrees that trees obstruct sunlight to the Simpsons' windows but says this is only in the late afternoon.