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The NSW law on trees from your neighbour blocking the sun – Land Law & Agriculture

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The greenery in my neighbour’s yard keeps getting bigger and
bigger – now there are trees blocking the sun from reaching my
garden and patio. My flowers are suffering and I can’t enjoy
sitting in the sun at home any more. On top of that, the
neighbour’s hedge has grown so high it blocks the sun from
reaching my solar panels.

What does the law say? Do I have a right to sunshine?

Tree disputes often end up in court

While everyone is encouraged to try to settle a neighbour tree
dispute amicably, by discussing the problem civilly and reaching a
solution, these are among the most common types of cases that can
end up in court.

Tree disputes have their own law – the aptly named NSW Tree (Disputes Between Neighbours) Act

If you are having a tree dispute with a neighbour, it’s
worth reading it to know where you stand before you consider taking
any further action.

What happens if you can’t resolve a dispute about trees
blocking your light?

When neighbours can’t agree, the case can be adjudicated by
the Land and Environment Court (LEC).

The person seeking action against the tree or hedge must give 21
days’ notice to the owner of the adjoining land, detailing the
orders sought if the case goes to court. Notice may also have to be
given to the local municipal council or the Heritage Council if a
heritage matter is involved.

If there is no agreement after 21 days, you can make an
application to the LEC. The LEC is less formal than most other
court proceedings. The LEC needs to be satisfied that reasonable
efforts have been made to reach agreement, and that the tree is
severely obstructing the sun.

The LEC can order that the tree or hedge be pruned to a certain
height or removed, and can order payment of costs. The court’s
commissioner hearing the case will usually visit the site with the
two parties, along with any experts involved in the case, such as
arborists, engineers, builders and architects.

Previous court decisions on trees blocking sunlight

It’s a good idea to obtain legal advice on the best way to
present your case before heading off to the LEC.

While in some cases the LEC sides with the person complaining
about a hedge or trees blocking out the light, in others the court
has not agreed to a lopping for various reasons, including how
“severe” the blocking of the sun is.

The court will weigh the interests of one party, whose view or
sunlight are being obstructed, against the competing interests of
the other party, who may have a defence – for example, that the
trees provide necessary privacy, landscape or ecological value.

For instance, in Hunt v Troy [2011] NSWLEC 1148, the
owners of a Umina Beach property wanted a neighbour’s hedge
trimmed to regain their water views and sunshine in their living
room. But on the day the court inspected the site, they decided
there was no “severe” obstruction of the view or sunlight
and dismissed the case.

On the other hand, in Lynch v Singleton [2018] NSWLEC 1008,
the LEC ordered a row of 5.5 metre high lilli pilli trees be pruned
to 3.5 metres to allow sunlight and views into a neighbour’s
Newcastle home.

LEC decisions where tree removal applications were refused

The LEC helpfully lists more than a hundred cases where an
application for the removal of a tree was refused.

It could be worth perusing some of them before deciding whether
you have a case against your neighbour’s tree. (Please see Decisions where an application for the removal
of a tree has been refused
, Land and Environment Court of
NSW, 20 May 2020.)

Neville Hesford

Property and building disputes

Stacks Law Firm

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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