A NSW woman has taken her neighbours to court over claims trees on their property block natural light and views from her home and have damaged a boundary wall.
Melanie Barstow and her neighbours Edward and Ruth Ainsworth share a common east-west boundary between their waterfront properties at Lake Macquarie, in the NSW Hunter region.
Barstow purchased her property in 2019. It’s positioned at a higher level than her neighbours.
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On the other hand, the Ainsworths have lived in their property since 1988.
A concrete block wall on the boundary separates the properties and supports a paved path between Barstow’s home and the common boundary.
In an application filed in the NSW Land and Environment court, Barstow took issue with 23 trees in her neighbours’ garden, including nine Leyland cypress trees and 12 lilly pillies, which form a hedge.
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She claimed some of the trees were “significantly obstructing sunlight to her dwelling” through several windows in her house.
She also claimed the roots of some of the trees had damaged the boundary wall on her property and there was a risk of future damage to the wall and to the house foundations.
Barstow applied to have 10 of the trees removed and to have all the trees pruned to a certain height so that they did not obstruct natural light and view and so that there were no branches or foliage overhanging or extending beyond the common boundary.
She also applied to prohibit the neighbours from planting any more trees or hedges along their southern boundary.
In response, the Ainsworths submitted the trees contributed to their privacy by limiting oversight from their neighbour’s property, reducing light spill and muffling noise, and to aesthetics, garden design, and landscaping, by softening the imposing appearance of the neighbour’s wall.
Hunter woman Melanie Barstow took issue with her neighbours’ lilly pilly hedge. Credit: Getty Images
They also said, in the 35 years since they’ve lived at the property, they have “planted, maintained, removed where necessary, and pruned plants”.
The Ainsworths rejected most trees from being part of the orders, but said they would prune several of the trees annually and ensure the foliage overhanging the common boundary be pruned.
They also agreed to pay for the pruning and debris removal costs.
Before going to court, Barstow was in discussions with her neighbours and attempted to organise a mediation session, but was unsuccessful.
Her partner had also requested the Ainsworths prune the boundary trees to the level of the boundary wall to improve light levels within the home, but it was denied.
The two parties went to court over the matter, with a hearing taking place in April.
The court heard differing opinions on whether the roots of some of the trees had caused any damage to the boundary wall and whether they would cause any damage to the wall or the house foundations in the future.
“I was satisfied that roots from (three trees) had caused damage to the applicant’s wall, but that the damage had minimal impact on the wall’s performance,” Acting Commissioner of the Land and Environment Court John Douglas said in his decision this week.
“Due to the independence and strength of the applicant’s house foundations and the proximal presence of only minor roots, I am not persuaded that roots are likely to damage the house foundations, and certainly not in the near future.
“Considering the age of the wall, and insufficient evidence substantiating claims that incursion of roots into the wall has impacted wall performance or is likely to materially impact its performance in the near future, the applicant’s expectation of increased near future damage by the respondents’ trees, is largely speculative.
Douglas said removing any of the trees is “neither necessary, nor reasonable”.
“The respondents gain significant privacy and aesthetic benefits from the trees, and the trees provide a range of environmental benefits,” he said.
“Therefore, I am not satisfied that removal of any of the trees is required, and nor would tree removal be a proportional response to the existing minor wall damage or near future damage, likely to be caused by the trees.”
However, Douglas was satisfied the trees did obstruct some sunlight and views.
“Although the nature and current severity of obstruction of both sunlight and views is relatively insignificant when availability of both is considered across the whole dwelling, the applicant’s interest in having obstructions removed, remedied, or restrained can largely be satisfied by orders for pruning that do not jeopardise tree health or the respondents’ privacy,” he said.
The Ainsworths were ordered to hire an arborist to prune some of the trees down to certain heights every year.
The court also stated the Ainstworths need to prune dead branches from the internal canopy of two trees, at the expense of their neighbour, within 90 days of the order.
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