Saidi v Farajpour [2022] NSWLEC 1078

Saidi v Farajpour [2022] NSWLEC 1078

The respondents’ cypress and brush cherry trees form a hedge under the Act, have grown since 2013 to now severely obstruct sunlight to the applicants’ living room windows, and the obstruction has materially increased during the applicants’ ownership. The applicants made reasonable efforts to resolve. The benefit of restoring sunlight access by removal of the cypress and pruning/replacement with brush cherries outweighs any detriment to the respondents. Orders for removal, replanting with a maintained hedge, and regular pruning cap the hedge at a height reflecting conditions when applicants purchased the property.

Parties
First Applicant: Samir Arif Saidi; Second Applicant: Kate Ann Saidi; First Respondent: Ladan Farajpour; Second Respondent: Mehrad Farajpour
Jurisdiction
Australia
Judgment Date
16 February 2022
Procedural Posture
Trees (disputes Between Neighbours) Act 2006, Pt 2 a Application / Judgment and Final Orders
Outcome
Application granted to the extent of the orders; partial removal and replacement, and ongoing pruning required, with costs of works to respondents.
Legal Topics
Tree Disputes, Access to Sunlight, Pruning and Removal Orders, Neighbour Disputes
Property Law Environmental Law Tree Disputes Access to Sunlight Pruning and Removal Orders Neighbour Disputes

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Parties

Samir Arif Saidi

First Applicant

Kate Ann Saidi

Second Applicant

Ladan Farajpour

First Respondent

Mehrad Farajpour

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Act 2006, Pt 2 a Application / Judgment and Final Orders

Legal Issues

  1. 1 Whether the trees are planted so as to form a hedge under Pt 2A of the Trees Act
  2. 2 Whether the trees severely obstruct sunlight to the applicants’ dwelling
  3. 3 Whether remedy should include pruning or removal and replacement of the trees

Ratio Decidendi

The respondents’ cypress and brush cherry trees form a hedge under the Act, have grown since 2013 to now severely obstruct sunlight to the applicants’ living room windows, and the obstruction has materially increased during the applicants’ ownership. The applicants made reasonable efforts to resolve. The benefit of restoring sunlight access by removal of the cypress and pruning/replacement with brush cherries outweighs any detriment to the respondents. Orders for removal, replanting with a maintained hedge, and regular pruning cap the hedge at a height reflecting conditions when applicants purchased the property.

Court Disposition

Application granted to the extent of the orders; partial removal and replacement, and ongoing pruning required, with costs of works to respondents.

Orders

  • By 31 March 2022, respondents to engage and pay an arborist (minimum AQF level 3) to remove all cypress trees along boundary and grind out stumps; prune three specified brush cherries to no more than 4 metres and prune southern faces.
  • By 30 April 2022, respondents to plant eight brush cherries at least 1.5 metres tall where cypress were removed.