Land and Environment Court New South Wales Medium Neutral Citation: Hourigan v Howard [2018] NSWLEC 1686 Hearing dates: 21 December 2018 Date of orders: 28 December 2018 Decision date: 21 December 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of sunlight not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Morgan Hourigan (First Applicant) Christine Hourigan (Second Applicant) Jake Howard (First Respondent) Stacey Howard (Second Respondent) Representation: M & C Hourigan, litigants in person (Applicants) J Howard, litigant in person (Respondents) File Number(s): 317351 of 2018 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Two neighbouring dwellings in suburban Como, in Sydney's south, are separated by a few metres. From the lower land on the property of Jake and Stacey Howard ('the respondents') the fence along the common boundary is 1.8 metres tall. From the higher land on the neighbouring property of Morgan and Christine Hourigan ('the applicants') the same fence is approximately 1.5 metres tall. 2. To maintain some privacy along this side of their property the Howards firstly planted a hedge of photinia, later adding some bamboo in pots. They have regularly maintained the plants to a height of 2.5—2.8 metres. 3. The Hourigans claim the plants are blocking sunlight to their windows. They have applied to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the Howards to prune and then maintain the plants at fence height. 4. The hearing took place onsite. The Howards have moved the bamboo, which grows in pots, away from the boundary. It does not obstruct sunlight to the Hourigans' property. 5. The photinia trees grow in a hedge in a garden bed next to the boundary. The Hourigans are concerned about only the two plants closest to their living room window. The plants are around 2.5 metres tall, with some new shoots slightly more than 2.5 metres above ground level. Part 2A of the Trees Act therefore applies to these trees. 6. The trees are almost 2 metres from the north-facing window of the Hourigan's living room. The tops of the trees are 50—60 cm below the top of the window. The window extends down to the floor. During winter months the trees may partially obstruct sunlight to the lower section of the window, although the fence and more distant trees would also partially obstruct this sunlight. It appears that during the remainder of the year the trees would not obstruct sunlight to this window. There is no obstruction now, in mid-summer. The Hourigans have provided no photos or shadow diagrams showing anything to the contrary. 7. The Hourigans say the trees were taller when they made their application to the Court, after which the trees were pruned. The Howards' photographs, and the Hourigans' own statements, indicate they were no more than 2.8 metres tall. It appears that the Howards maintain the hedge within this height range. 8. I find that the obstruction of sunlight to the Hourigan's living room window is not severe. Therefore, the Court cannot make any orders for interfering with these trees. Decision 1. As a result of the foregoing, the application is dismissed. ____________________________ D Galwey Acting Commissioner of the Court ********** Amendments 28 December 2018 - Corrected: class 2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 December 2018