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NSW Crest

Land and Environment Court
New South Wales

Medium Neutral Citation:
Brannigan v Coban [2013] NSWLEC 1025
Hearing dates:
14 February 2013
Decision date:
14 February 2013
Jurisdiction:
Class 2
Before:
Galwey AC
Decision:

(1) The application is upheld in part.

(2) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist or horticulturist, with appropriate insurance, to prune the hedge comprising nine Leighton Green Cypress trees to a height no greater than 5.5 metres above ground level at the base of each tree.

(3) The respondents are to give the applicant two days' notice of the works in (2).

(4) The applicant is to allow all access necessary for the works in (2) during reasonable hours of the day.

(5) Each year, within 30 days of the anniversary of the date of these orders, the respondents are to engage a suitably qualified arborist or horticulturist, with appropriate insurance, to prune the hedge comprising nine Leighton Green Cypress trees to a height no greater than 5.5 metres above ground level at the base of each tree.

(6) Each year the respondents are to give the applicant two days' notice of the works in (5).

(7) Each year the applicant is to allow all access necessary for the works in (5) during reasonable hours of the day.

Catchwords:
TREES [NEIGHBOURS] Hedge; obstruction of views; pruning ordered.
Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Category:
Principal judgment
Parties:
Robert Brannigan (Applicant)

Salih Coban (First respondent)
Zalihe Coban (Second respondent)
Representation:
APPLICANT
Robert Brannigan (Litigant in person)

RESPONDENTS
Zalihe Coban (Litigant in person)
File Number(s):
21048 of 2012

Judgment

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

1From the rear of his Menai dwelling, Mr Brannigan once enjoyed views northward across the valley to the bushland beyond. Because he is concerned that those views have become obstructed by neighbouring trees, he has applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the trees to be removed.

2The Cobans own and reside on the property to the north. They planted the trees for privacy. They have expressed their willingness for the trees to be pruned (at the applicant's expense) to a height that would restore his views but maintain their privacy.

The situation

3The onsite hearing provided an observation of the situation. It also allowed, for the first time, each party to see the situation from the other's viewpoint.

4A row of nine Leighton Green Cypress trees (XCupressocyparis leylandii 'Leighton Green') grows on the Cobans' property along their southern rear boundary, the common boundary with Mr Brannigan's property. They are planted in a straight line at regular spacings. Three trees (T1 to T3) at the western end are overshadowed by other vegetation, suppressing their growth - they are 4 to 5 metres tall. The remaining trees (T4 to T9) have grown unchecked and are 7 to 8 metres tall.

5Mr Brannigan moved into his property in 1999, at which time he says the trees were not present. He suggests they were planted in 2002. The Cobans built their dwelling in 1998 and move in soon after. They say they planted the trees at that time, that the trees were present when Mr Brannigan moved into his property, but they were small seedlings and he would not have seen them over the fence.

6The Cobans' dwelling has two levels. An outdoor area downstairs faces south, toward Mr Brannigan's property. Upstairs there is one window facing south - this is to their daughter's bedroom.

7The Cobans say they planted the trees for privacy, which they do not want to lose.

8The land here slopes up to the south, so that Mr Brannigan's property is considerably higher than the Cobans'. Upper level rooms at the rear of his property, facing north, include a lounge, dining area and a bedroom. A large uncovered balcony extends along the southern side of the dwelling outside these rooms.

9Mr Brannigan claims his view is severely obstructed from two windows in the dining area (V1 and V2) and a window in the bedroom (V3). The trees are now of a height that they block any views, leaving only sky to be seen above them. They create a dense screen of foliage that is only four or so metres from the balcony edge and is above head height. Looking to the side of the trees, it can be seen that the view would include the bushland across the small valley to the north. This view would have been available to Mr Brannigan over the top of the Cobans' roof when the trees were considerably shorter.

Does the Court have jurisdiction?

10I am satisfied that, and the parties do not disagree that: the trees are planted so as to form a hedge (s 14A(1)(a)); that they are more than 2.5 metres tall (s 14A(1)(b)); that they severely obstruct the applicant's view from his dwelling (s 14E(2)(a)(ii)); and the severity of the obstruction outweighs any reason not to interfere with the trees (s 14E(2)(b)). As the key jurisdictional tests are satisfied, the Court can make such orders as it sees fit to remedy, restrain or prevent the view obstruction after considering the matters set out in s 14F.

Consideration of relevant matters

11The trees are planted close to the common boundary and are only several metres from the applicant's balcony (s 14F(a)).

12The applicant's dwelling was present prior to the planting of the trees. Although it is unclear if the trees were present when the applicant moved into his dwelling, they could not be seen by the applicant and did not obstruct any view at that time (s 14F(b)).

13The trees have grown above 2.5 metres since the applicant has occupied his dwelling (s 14F(c)).

14The trees contribute to the respondents' landscape (s 14F(h)) but do not have any significant amenity, cultural or environmental value beyond that (ss 14F(f), (g), (i) and (j)).

15Pruning the trees to reduce their height would not remove more than a third of their foliage and would not significantly damage them (s 14F(a)).

16The trees provide the Cobans with privacy that would be difficult to obtain otherwise ((s 14F(l)).

17The main view would be otherwise unobstructed if not for the trees (s 14F(m)).

18For several years the applicant has attempted to get the respondents to take some action that would restore his views (s 14F(n)).

19The trees are evergreen (s 14F(p)).

20The view is of the natural landscape across the valley. Little of that view now remains (s 14F(q)).

21The view has been lost from the applicant's living areas, where he may be expected to spend most of his time (s 14F(r)).

The parties are willing to compromise

22Having now been provided with the opportunity to see the issues that the other party experiences, both parties were willing to make some compromise regarding the height at which the trees might be pruned. However they were unable to agree on a pruning regimen that may have been used for consent orders. Therefore I have come to the orders below as the most satisfactory outcome that should restore the applicant's views across the valley while maintaining the respondents' privacy.

Orders

23The orders of the Court are:

(1)The application is upheld in part.

(2)Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist or horticulturist, with appropriate insurance, to prune the hedge comprising nine Leighton Green Cypress trees to a height no greater than 5.5 metres above ground level at the base of each tree.

(3)The respondents are to give the applicant two days' notice of the works in (2).

(4)The applicant is to allow all access necessary for the works in (2) during reasonable hours of the day.

(5)Each year, within 30 days of the anniversary of the date of these orders, the respondents are to engage a suitably qualified arborist or horticulturist, with appropriate insurance, to prune the hedge comprising nine Leighton Green Cypress trees to a height no greater than 5.5 metres above ground level at the base of each tree.

(6)Each year the respondents are to give the applicant two days' notice of the works in (5).

(7)Each year the applicant is to allow all access necessary for the works in (5) during reasonable hours of the day.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 19 February 2013