Land and Environment Court New South Wales

• Medium Neutral Citation: Simpson v The Owners Strata Plan No 30419 [2013] NSWLEC 1102
• Hearing dates: 20 June 2013
• Decision date: 20 June 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application is upheld.

(2) By 11 October 2013 the respondent is to remove, at its expense, the six 'Leighton Green' Cypress trees identified as Trees T1 - T6 (on the diagram attached to the application) which are located adjacent to the northern boundary in the front yard area of the respondent's property at 12 Billyard Avenue, Elizabeth Bay.

(3) Trees planted by the respondent to replace the six 'Leighton Green' Cypress trees are to be of a species capable of being maintained at a maximum height no greater than 2.7 metres above the footpath level adjacent to the northwest corner of the respondent's property.

(4) Thereafter, the respondent is to maintain, at its expense, the replacement trees at a maximum height no greater than 2.7 metres above the footpath level adjacent to the northwest corner of the respondent's property.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; application upheld; consent orders.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
• Category: Principal judgment
• Parties: Andrea Simpson (Applicant); The Owners Strata Plan No 30419 (Respondent)
• Representation: APPLICANT; Andrea Simpson (Litigant in person); RESPONDENT; Susan Hill (Solicitor); Susan Hill & Associates Lawyers
• File Number(s): 20236 of 2013

Judgment

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

Introduction

1 When Ms Simpson purchased her Elizabeth Bay property several years ago, she enjoyed harbour views that have, since then, become at least partially obstructed by a row of six Cypress trees growing in a property across the street. Despite attempts to resolve this situation with the trees' owner, she was unable to gain a satisfactory outcome and applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders to remedy this obstruction.

2 Prior to today's hearing, the parties reached some agreement and prepared consent orders. Before making those orders, the Court must firstly be satisfied that, according to s 14A(1), Part 2A of the Act applies to the trees. Secondly, the Court must be satisfied that the trees enliven its jurisdiction at s 14E(2) of the Act. Finally, according to s 14D, the orders must be such as the Court thinks fit after considering a range of matters listed at s 14F.

Findings

3 A row of six 'Leighton Green' Cypress trees grows within the respondent's property, along its northern boundary, extending from the front boundary at the street towards the northwest corner of the residential building. The trees are planted closely, at regular spacings, and their foliage overlaps so as to form one continuous canopy along the boundary. There is no question that they were planted so as to form a hedge. They are all greater than 2.5 metres in height. Therefore, according to s 14A(1), Part 2A of the Act applies to these trees.

4 According to s 14B, an owner of land can make an application regarding obstruction of a view from their dwelling caused by trees situated on adjoining land. The respondent's property, where the trees are situated, is directly across the street from the applicant's property. The Court found in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 that properties separated by a street may be regarded as adjoining properties for the purposes of this Act. Apart from the street there is no other geographic separation of the two properties, and I am satisfied for the purposes of this matter that they are adjoining.

5 The trees block a significant part of the available water views from within the lounge and dining rooms of Ms Simpson's dwelling. The obstructed view includes the water near the shore. The view is of high value and is severely obstructed. The rooms from which the view is obstructed are high-use living areas. The severity of the obstruction is significant enough that it warrants remediation requiring interference with the trees. I am satisfied that the trees meet the tests at s 14E(2) of the Act and the Court's jurisdiction is enlivened.

6 The trees are planted adjacent to the top of a very tall retaining wall. To avoid any risk of damage to that wall, the respondent's preference is to remove and replace these trees rather than be lumbered with the difficulty of maintaining them and the risk that their growth may damage the wall in future. Considering this, I find that the trees' removal is a suitable solution to the situation. The Court's jurisdiction extends to making orders regarding replacement trees and their maintenance at a certain size.

7 The Court notes that each party has agreed to bear its own costs of the application.

Orders

8 For the above reasons, the orders by consent are:

(1) The application is upheld.

(2) By 11 October 2013 the respondent is to remove, at its expense, the six 'Leighton Green' Cypress trees identified as Trees T1 - T6 (on the diagram attached to the application) which are located adjacent to the northern boundary in the front yard area of the respondent's property at 12 Billyard Avenue, Elizabeth Bay.

(3) Trees planted by the respondent to replace the six 'Leighton Green' Cypress trees are to be of a species capable of being maintained at a maximum height no greater than 2.7 metres above the footpath level adjacent to the northwest corner of the respondent's property.

(4) Thereafter, the respondent is to maintain, at its expense, the replacement trees at a maximum height no greater than 2.7 metres above the footpath level adjacent to the northwest corner of the respondent's property.

D Galwey

Acting Commissioner of the Court

Decision last updated: 20 June 2013