Land and Environment Court New South Wales

• Medium Neutral Citation: Ivkovic v Pelosi [2013] NSWLEC 1026
• Hearing dates: 13 February 2013
• Decision date: 13 February 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist or horticulturist, with appropriate insurance, to prune trees T7 to T17 to a height no greater than 2.5 metres above soil level at the base of each tree.

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

(4) The applicants are to allow all access necessary for the works in (2) during reasonable hours of the day. They may supervise the works if they wish.

(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 trees T7 to T17 to a height no greater than 2.5 metres above soil level at the base of each tree.

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

(7)Each year the applicants are to allow all access necessary for the works in (5) during reasonable hours of the day. They may supervise the works if they wish.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; pruning ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Julia Ivkovic (First applicant); Kelvin McEwan (Second applicant); Michael Pelosi (First respondent); Joanne Pelosi (Second respondent)
• Representation: APPLICANT; Julia Ivkovic and Kelvin McEwan (Litigants in person); RESPONDENTS; Michael Pelosi and Joanne Pelosi (Litigants in person)
• File Number(s): 21116 of 2012

Judgment

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

Introduction

1 Along a South Coogee residential street that runs east-west, views of the ocean are available to the east. The owners of a property in this street, Ms Ivkovic and Mr McEwan, say they have lost the ocean view they previously enjoyed as a result of trees growing on their neighbours' property. They have applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the trees to be reduced in height. Their neighbours, Mr and Mrs Pelosi, have pruned some of the trees to a height they say they are willing to maintain into the future.

The framework of the Act

2 Before the Court can make any orders, there are several jurisdictional tests that must be answered. Firstly, the trees must be planted so as to form a hedge (s 14A(1)(a)). This is not in dispute. Secondly, they must be more than 2.5 metres tall (s 14A(1)(b)). Again, this is not in dispute. The trees must severely obstruct the applicants' view from their dwelling (s 14E(2)(a)(ii)); and the severity of the obstruction must outweigh any reason not to interfere with the trees (s 14E(2)(b)). These last two matters are ones that I must determine. If all these 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.

The situation

3 Twenty trees, narrow conifers of an unidentified cultivar, grow in a narrow bed along the respondents' western boundary, the common boundary with the applicants' property, within the front setback. They are planted in a straight line at regular spacings. For the purpose of the application they are numbered from the tree nearest the front boundary (T1) to the southernmost tree (T20). Eleven of the trees (T7 to T17) have recently been pruned down to a height of approximately 3 metres. Trees T1 to T6 at the front of the property, and trees T18 to T20 between the two dwellings, remain unpruned and are approximately 7 metres tall.

4 A group of three similar conifers grows within the front setback of the applicants' property, close to trees T1 to T7. Within the respondents' property there is another small group of similar conifers close to the front of their dwelling, several metres away from the common boundary.

5 The applicants' dwelling is to the west of the respondents'. The 20 trees are between the applicants' dwelling and ocean views available from the front of their dwelling.

6 The applicants have lived at their property since 2002. The respondents have lived at their property for approximately 27 years. They planted the trees in late 2004 or early 2005.

The applicants' submissions

7 The applicants say they once enjoyed ocean views from all three levels of their property: the driveway below the ground floor; the verandah, lounge room and kitchen on the ground floor; and the balcony, bedroom and dressing room on the first floor. They say they have lost those views as a result of the neighbouring trees and that the view loss remains despite the recent pruning of several trees. They say that their views would be restored to their satisfaction if the trees were reduced to a height of 2 metres. They point out that most of the other properties in the street enjoy the views they have now lost.

The respondents' submissions

8 The respondents say they planted the trees to gain privacy, screening their front door and front path from the neighbouring property. The trees are not required for privacy within their dwelling. They say that they are willing to maintain the pruned trees at their current height, which in their opinion should allow the applicants sufficient views. They wish to leave the remaining trees unpruned to maintain privacy between the dwellings (T18 to T20) and for amenity at the front of their property (T1 to T6).

Other issues

9 Both parties raised several other issues in their submissions. Many of these related to the history of communication between the parties. Though both real and unfortunate, this was generally irrelevant to the determination of the matter within the legislative framework. It was also pointed out that the respondents had built up the garden bed above natural grade before planting the trees. There appears to be nothing that should prevent them doing this, and it, too, is irrelevant to this determination, other than providing a reference point for measuring the trees' heights.

Findings

10 Regarding the view from the level below the ground floor, I note that the driveway is not part of the dwelling, so any view loss from here is not covered by s 14E(2)(a)(ii). Furthermore, during the hearing the applicants stated that they were not concerned about view loss from upstairs, although four viewpoints from the first floor were included in the application. I noted during the onsite view that the trees caused no severe obstruction of a view from the first floor anyway. Therefore, the viewpoints I will deal with are those on the ground floor: V1 to V4.

11 From the verandah (V1) the applicants would have had clear views of the water prior to the trees being planted, and that view is now lost completely as the tops of the trees are above the horizon level.

12 Looking north-east from the front of the lounge room (V2) there is only a partial obstruction of the view by the taller trees T1 to T6 as well as by the applicants' own three trees. The contribution of the respondents' trees to the view loss is not severe.

13 Looking eastward through the side window of the lounge room (V3), where clearly there were once clear water views, all views of the water are now obstructed entirely, from both standing (except, perhaps, for the tallest of us) and sitting positions by the respondents' trees, primarily by the pruned trees T7 to T17.

14 The kitchen window (V4) faces east. Looking directly out this window one sees the respondents' dwelling. Looking to the northeast the view is partially obstructed by trees T1 to T3, but also by the more distant group of trees in front of the respondents' dwelling. However, most of the view from the kitchen is obstructed by the respondents' dwelling, so in my mind the trees do not cause a severe obstruction of a view.

15 I accept that the view loss from the lounge room is severe. In Tenacity Consulting v Waringah [2004] NSWLEC 140, Roseth SC established a process for assessing view loss. In brief, the issues to be considered include: the value of the view; where the view is lost from (for example, a living area or a bedroom); and how much of the view remains.

16 The views here are highly valued water views. The view loss is from a living room, from which the ocean can no longer be seen. Accordingly, I am satisfied that the view loss is severe and the Court has jurisdiction over the hedge.

17 The applicants' wishes to have their views restored must be weighed against the respondents' desires for privacy. I note that there is no privacy issue inside their dwelling. I find that an expectation of privacy along their front pathway is unreasonable, as this is easily viewed from the public footpath and road in front of their property. The need for privacy at a front door is not something I would rate highly, but even taking the respondents' claims at their highest, I note that most of their privacy from the neighbouring property could be retained with the trees slightly shorter than their current height.

18 I find that pruning can restore much of the view lost from the applicants' living area, at least from standing positions, without dramatically affecting the respondents' privacy. As a result, orders will be made for pruning. As the trees that are so far unpruned (T1 to T6 and T18 to T20) do not severely obstruct a view, no orders will be made for those nine trees.

Orders

19 The orders of the Court are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist or horticulturist, with appropriate insurance, to prune trees T7 to T17 to a height no greater than 2.5 metres above soil level at the base of each tree.

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

(4) The applicants are to allow all access necessary for the works in (2) during reasonable hours of the day. They may supervise the works if they wish.

(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 trees T7 to T17 to a height no greater than 2.5 metres above soil level at the base of each tree.

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

(7) Each year the applicants are to allow all access necessary for the works in (5) during reasonable hours of the day. They may supervise the works if they wish.

__________________________

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 19 February 2013