Simon v Goltsman [2021] NSWLEC 1069

Simon v Goltsman [2021] NSWLEC 1069

The Court found that the respondents' hedge of eight Leighton Green Cypress trees, now 9.2 metres tall and less than 2 metres from the applicant's dwelling, severely obstructs sunlight to the applicant's windows and a view from her dwelling, that the applicant made reasonable effort to resolve the matter before applying, and that the balance of interests favoured making orders for removal of the hedge; pruning would not be suitable or effective due to arboricultural evidence and the extent of obstruction.

Parties
Applicant: Charlotte Simon; First Respondent: Laura Goltsman; Second Respondent: Joseph Goltsman
Jurisdiction
Australia
Judgment Date
16 February 2021
Procedural Posture
Class 2 Tree Dispute / Final Judgment and Orders
Outcome
Application granted; orders made for removal of hedge and restriction on future planting.
Legal Topics
Trees (disputes Between Neighbours), Obstruction of Sunlight, Obstruction of Views, Neighbour Disputes, Hedge Removal, Privacy, Development Consent Conditions
Property Law Environmental Law Trees (disputes Between Neighbours) Obstruction of Sunlight Obstruction of Views Neighbour Disputes Hedge Removal Privacy +1 more

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Parties

Charlotte Simon

Applicant

Laura Goltsman

First Respondent

Joseph Goltsman

Second Respondent

Procedural Posture

Class 2 Tree Dispute / Final Judgment and Orders

Legal Issues

  1. 1 Whether the cypress hedge severely obstructed sunlight to a window of the applicant's dwelling
  2. 2 Whether the cypress hedge severely obstructed a view from the applicant's dwelling
  3. 3 Whether the applicant made reasonable efforts to resolve the dispute before applying to the Court

Ratio Decidendi

The Court found that the respondents' hedge of eight Leighton Green Cypress trees, now 9.2 metres tall and less than 2 metres from the applicant's dwelling, severely obstructs sunlight to the applicant's windows and a view from her dwelling, that the applicant made reasonable effort to resolve the matter before applying, and that the balance of interests favoured making orders for removal of the hedge; pruning would not be suitable or effective due to arboricultural evidence and the extent of obstruction.

Court Disposition

Application granted; orders made for removal of hedge and restriction on future planting.

Orders

  • The application is granted.
  • Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the eight Leighton Green Cypress (trees 1–8 in Mr Jackson's report of 28/09/2020) forming a hedge along their rear boundary, to no more than 50 cm...