Land and Environment Court New South Wales

• Medium Neutral Citation: Langley v Whitton [2013] NSWLEC 1036
• Hearing dates: 28 February 2013
• Decision date: 28 February 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; whether trees form a hedge, obstruction not severe; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tooth v McCombie [2011] NSWLEC 1004
• Texts Cited: Macquarie Dictionary; Oxford Dictionary
• Category: Principal judgment
• Parties: David Langley (First applicant); Susan Langley (Second applicant); Lindsay Whitton (First respondent); Sharyn Whitton (Second respondent)
• Representation: David Langley (Applicants) (Litigant in person); Lindsay Whitton and Sharyn Whitton (Respondents) (Litigants in person)
• File Number(s): 21121 of 2012

Judgment

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

Introduction

1 The Langleys have lived at their Newport property since 1979. Around 1995 their neighbours, the Whittons, planted some palms near the common boundary and elsewhere on their property. The Langleys say those palms now obstruct their previously clear views of Pittwater and surrounds. They have applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for several palms to be removed.

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)). Secondly, they must be more than 2.5 metres tall (s 14A(1)(b)). 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)). 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 The palms and views were observed at the onsite hearing. Five palms grow in a raised garden area above the respondents' pool, near the common boundary. Three single-stemmed palms grow in a line close to the boundary; two multi-stemmed palms are further from the boundary. They are 6 to 7 metres tall. Their crowns partially overlap. They have been pruned recently.

4 Further to the south in a lower garden area, and separate from the previously described trees, are another three or four palms at irregular intervals. Their crowns are separated spatially, although they are close to, and overlap with, two other palms on a neighbouring property.

5 At the applicants' dwelling, the views are from: the upper deck (View 1), the lower deck (View 2) and the lounge (View 3). The nearest trees are approximately 20 metres from View 1 and 5-10 metres from View 2.

Applicants' submissions

6 The Langleys submit that the trees were planted, that they form a hedge, that they are more than 2.5 metres tall and that they severely obstruct a view. On this basis they argue that the jurisdictional tests are satisfied.

7 They say the trees were planted for privacy and therefore the respondents should have been aware that any screening would also obstruct their view.

8 Photographs taken before the trees were pruned show a greater obstruction of the view than the situation at the time of the hearing. They say the trees were pruned in December and then again on the day prior to the hearing.

9 They say the view loss is from areas of high use, often used for entertaining.

10 They say removal of some fronds is not a long-term solution as the palms will only regrow and cause a severe obstruction in future.

Respondents' submissions

11 The Whittons say the trees do not form a hedge and were not planted to form a hedge. They engaged a landscape architect to design the garden. The palms were planted throughout the garden, rather than in a single line. They do not form a screen, as a hedge might do. The palms are in keeping with the neighbourhood character and provide amenity to the property. They say that with further growth the palms will be too tall to obstruct the view at all.

Findings

12 I find that, based on their irregular spacings and separation, none of the palms in the lower garden area forms a hedge.

13 Regarding the trees in the upper garden area, closer to the applicants, and whether they form a hedge, I do not need to determine this for the following reasons.

14 At the hearing, from all viewpoints the palms obstructed less than half of the available water views. Even within the obstructed parts of the view there are filtered views of water through the palms.

15 The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. In my view, the obstruction is less than severe. Mr Langley himself stated during his submissions: "I admit that at the moment the view is reasonable."

16 I accept Mr Langley's submissions that the trees previously caused a greater obstruction and that they will regrow. However, as Fakes C found in Tooth v McCombie [2011] NSWLEC 1004, although there may have been a severe obstruction in the past, the view obstruction must be assessed at the time of the hearing. It is therefore my view that the test at s 14E(2)(a)(ii) is not satisfied.

17 I also accept the Whittons submission that the palms will grow taller and soon will be too tall to cause any obstruction. Although not overtly listed under the matters to be considered at s 14F I note that s 14F(s) includes such other matters as the Court considers relevant in the circumstances of the case. I regard this as relevant. Even if the obstruction caused by the palms were severe, thus enlivening the Court's jurisdiction, they will not provide a permanent screen as hedges generally do. Rather, it is a temporary, and partial, screen that will soon grow above the water view.

Conclusions

18 As the view obstruction is not severe, the Court's jurisdiction is not enlivened and the application is therefore dismissed.

Orders

19 The court orders that:

(1) The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 March 2013