Issa v Dugandzic; Fardouly v Dugandzic

Land and Environment Court (NSW)|2020-11-27

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

COMMISSIONER: Michael and June Fardouly and their Carss Park neighbours, Laura and Andre Issa, applied to the Court in 2012 for orders regarding a hedge on another neighbouring property. I heard the 2012 proceedings and made orders (at [53] of Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355) for the hedge of cypress trees to be removed, having found that they severely obstructed the applicants' views. Further orders required any new hedge planted along that boundary to be maintained below 3.5 metres in height.
The respondent in those proceedings removed the cypress hedge and replanted another along the same boundary. He also planted other trees on his property. In 2016 Mr Dugandzic bought that property.
After unsuccessfully asking Mr Dugandzic to maintain the hedge according to the Court's earlier orders, each pair of neighbours applied again to the Court in 2020, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'). Their two applications plead for orders that the replacement cypress hedge be maintained according to the 2012 orders, and also for orders that other trees planted by the previous respondent be pruned to restore views.
The trees common to both applications are:

T1-T9 and T11-T15, being 14 Leyland Cypress trees
T10, a Chinese Tallow
T16-T18, three Weeping Lilly Pillies.

Additionally, the Issas' application includes four trees alongside their side boundary:

Framework for this decision

For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The trees (at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);
The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));
The trees must be severely obstructing either sunlight to a window of the applicant's dwelling, or a view from the dwelling (s 14E(2)(a)); and
The obstruction is such that the applicant's interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

Although the two applications were heard together, each must be determined on its own merits, and orders will be made for each application.

The hearing

The hearing took place onsite. The parties were self-represented, with Mr Fardouly representing himself and his wife. Mr Issa, Dr Issa and Mr Fardouly ('the applicants') took me to the Issas' dwelling to observe the impacts of trees on their views. Mr Dugandzic ('the respondent') took me to the rear of his dwelling to point out impacts to his privacy.
Mr Dugandzic pointed out during the hearing that the Issas' application shows his street number incorrectly. Leave was granted at the hearing for the application to be amended to show his correct address.

The applicants made reasonable effort

The applicants spoke with the respondent about their issues with his trees, wrote to Georges River Council, and met with a council representative before making their applications to the Court. I am satisfied that they made reasonable effort to reach agreement with the respondent.

The cypress hedge (T1-T9 and T11-T15)

Following the removal of the cypress hedge in the earlier proceedings, the respondent in those proceedings planted 14 Leyland Cypress in a row along the boundary. They are now approximately three metres tall, but were taller when these applications were made in March 2020. They are planted to form a hedge. At present they do not severely obstruct a view, but photographs show that they obstructed the view for some time before these applications were made. The view includes valued water views. Without ongoing maintenance, they are likely to obstruct the views again for both pairs of applicants.
The orders made in 2012 still apply to this hedge. Orders in 2012 included maintaining any replacement hedge along this boundary below a height of 3.5 metres, and s 16 of the Trees Act provides for orders to apply to a successor in title (Mr Dugandzic) to the owner who received the orders.
The orders made previously are appropriate to make here, and can be made here. Photographs show that this cypress hedge grew to severely obstruct the applicants' views again, until Mr Dugandzic received these applications. Without regular maintenance, they will again obstruct the applicants' views. As explained in Steber v Job [2019] NSWLEC 1308, this satisfies the jurisdictional test at s 14E(2) of the Trees Act, allowing orders to be made. Mr Dugandzic expressed a willingness to comply with such orders in future.

The Chinese Tallow (T10)

The Chinese Tallow grows near the common boundary, within the row of cypress trees. It is a tall tree, its crown well above, and separate from, the hedge. It was here when the 2012 proceedings were determined.
Mr Fardouly argued that the Chinese Tallow should have been included in the previous orders. He stated that in the 2012 judgment I wrote that this tree was unattractive and should be removed. However reading that decision it is clear that the 2012 application only referred to cypress trees that grew in a hedge. There is no mention of the Chinese Tallow in that judgment.
Nothing here suggests that the Chinese Tallow was planted as part of a hedge. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ provided some commentary on the jurisdiction of Pt 2A of the Trees Act. The Court must be satisfied that the trees are planted so as to form a hedge. This implies an intent to form a hedge at the time of planting. The Chinese Tallow is a single tree of a different species to those in the hedge. I am not satisfied that it was planted to form part of any hedge, so I cannot make orders for this tree.

Weeping Lilly Pillies (T16-T18)

One of the three Weeping Lilly Pillies east of Mr Dugandzic's driveway has been removed, leaving a live stump that is reshooting. Mr Dugandzic said it was on another neighbouring property. He pointed out the mark indicating the property boundary. If what remains of the tree is on his neighbour's property, as appears to be the case, then it is not on land adjoining the applicants' land, so the Court would have no jurisdiction over it.
The remaining two Lilly Pillies (T16 and T17 on the application drawings) are close together. They are planted to form a hedge. They are 5 metres or more in height. They are on Mr Dugandzic's land. From the Issas' property they already obstruct a significant part of their water view. They do not severely obstruct the Fardoulys' view. Pruning the trees would restore the Issas' view, however Mr Dugandzic acknowledged that the trees are planted in a very narrow bed, their roots already beginning to disturb the adjacent retaining wall. He would prefer to remove them. This would certainly avoid the structural problems that are likely to soon eventuate and is the better outcome.

The Bottlebrush and shrubs (T19-T21)

Alongside the Issas' property is a driveway shared by four other properties, including Mr Dugandzic's property. It appears that each of those property owners possesses a strip of this driveway, with all sharing a right-of-way access over the entire driveway. Mr Dugandzic's section of the driveway, adjacent to the Issas' boundary, is where trees T19-T22 are planted.
Trees T19-T21, some three metres tall, grow in a group but only slightly obstruct the view across the Issas' side boundary. This is not their primary view, nor could the extent of the obstruction be regarded as severe. As the test at s 14E(2)(a) is not satisfied, I cannot make orders for these three trees.

The Weeping Lilly Pilly (T22)

This Weeping Lilly Pilly is outside the Issas' living room window. It stands by itself, separate from other trees. It has not been planted so as to form a hedge. As the test at s 14E(2)(a) is not satisfied, I cannot make orders for this tree.

Other matters

I can make orders for the cypress trees T1-T9 and T11-T15 and for the two Lilly Pillies T16 and T17. I have considered the matters at s 14F of the Trees Act.
Mr Dugandzic has removed several large trees on his property and says this has assisted with the applicants' views. He wishes to maintain some privacy at the rear of his dwelling, from where the Fardoulys' upper level bedroom windows can be seen when looking upslope and over the cypresses. The applicants submitted that Mr Dugandzic was unwilling to prune the trees until after he received their applications to the Court. Mr Dugandzic submitted that he has now pruned the cypress trees four times and they are well below 3.5 metres in height.

Proceedings 2020/84578

As a result of the above the Court orders: 1. The application is granted, to the extent of these orders. 2. The respondent is to maintain, or engage a suitably experienced contractor to maintain, all trees in the cypress hedge along his western boundary, or in any replacement hedge along this boundary, at a height not exceeding 3.5 metres. 3. Within 30 days of the date of these orders the respondent is to remove the two Weeping Lilly Pillies (T16 and T17) on the eastern side of his driveway.

Proceedings 2020/84603

As a result of the above the Court orders: 1. The application is granted, to the extent of these orders. 2. The respondent is to maintain, or engage a suitably experienced contractor to maintain, all trees in the cypress hedge along his western boundary, or in any replacement hedge along this boundary, at a height not exceeding 3.5 metres.

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: 02 December 2020

(2012) 190 LGERA 334

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