Land and Environment Court New South Wales

• Medium Neutral Citation: Tooth v McCombie [2011] NSWLEC 1004
• Hearing dates: 19 January 2011
• Decision date: 19 January 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

1. Application dismissed

• Catchwords: TREES [NEIGHBOURS]; Hedge; obstruction of view; trees pruned prior to hearing; no jurisdiction
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
• Category: Principal judgment
• Parties: Sam & Jenny Tooth (Applicants); Cheryl & Ian McCombie (Respondents)
• Representation: S & J Tooth (Applicants - in person); C & I McCombie (Respondents - in person)
• File Number(s): 20791 of 2010

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

1 This is an application pursuant to s14A Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Coffs Harbour against the owners of trees growing on an adjoining property.

2 The applicants are seeking the trimming and maintenance of 12 trees growing along the boundary between the two properties.

3 The applicants contend that the trees severely obstruct views from their dwelling. The views are of Coffs Harbour city centre, a sports field and distant views to the ocean. These views are a portion of the overall outlook from the applicants' property which is situated in an elevated location. The nominated viewing points are glass doors and windows of the living and dining rooms of the applicants' dwelling. The views are said to be more obstructed from a sitting position.

4 The trees are a mixture of species and comprise a portion of the trees and shrubs planted along the side boundary fence between the two properties.

5 Trees 1-8 are a species of Lillypilly; tree 9 is a Bottlebrush; and trees 10-12 are Golden Penda ( Xanthostemon chrysanthus) . There are additional Lillypillies to the south and additional Golden Pendas as well as several Photinia to the north of the nominated trees.

6 The applicants originally sought the Court to order the maintenance of the trees to a height of 3m but after the site view now consider trees 1-8 should be no higher than 4m, tree 9 no higher than 4.5m and trees 10-12 could be maintained to a maximum height of 5m. The range in height is due to the slope of the land and consideration of the respondents' need for privacy around their pool and rear deck.

7 Photographs taken from the general viewing area and tendered by the applicants show some of the trees growing above the roofline of the respondents' dwelling and partly obscuring the view of the city centre. One of the photographs from viewing point 1, a glass sliding door off the dining area, shows elements of the city centre visible through gaps in the trees, probably trees 7, 8 and 9. Another view from a deck adjoining the living room shows some but not all of the trees growing above the respondents' roofline with views to the ocean still clear.

8 The respondents' evidence is that they had agreed to reduce the height of the trees although issues of available time and access were raised as reasons for the delay in this occurring within the timeframe desired by the applicants.

9 Since the making of the application the respondents have had all of the trees along the common boundary, including those in addition to the nominated trees, reduced from about 5 - 5.5m to an average height of about 3.2m.

10 There are now clear views from the applicants' dwelling to Coffs Harbour city centre, a sports field and views to the ocean from all of the nominated viewing points. The main obstructions to the applicants' views are now the roof of the respondents' house and a single African Tulip tree growing on the other side of the respondents' property.

11 Turning to the jurisdictional tests required by the Act, s 14B(b) enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

12 Section 14A(1) states that Part 2A only applies to groups of 2 or more trees that are planted so as to form a hedge and rise to a height of at least 2.5m and are situated on appropriately zoned land. In this matter the trees subject to this application meet these requirements.

13 Section 14E(2)(a)(ii) states:

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and ...

14 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.

15 Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders.

16 Whilst there may have been jurisdiction at the time the application was made, that is, the trees may have severely obstructed a view from the applicants' dwelling, the site inspection at the hearing clearly shows there is no obstruction of any view caused by any of the trees subject to the application.

17 While the evidence in the application must be considered, the Court's determination of these matters is substantially based on the facts present at the time of the hearing.

18 Therefore the test in s 14E(2)(a)(ii) is not satisfied and the Court has no jurisdiction to make an order under Part 2A. This includes any order for the future maintenance of the trees.

19 However, as discussed in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, the applicants may make a new application.

20 Therefore as a result of the forgoing, the Order of the Court is:

(1) The application is dismissed.

__________________________

J. Fakes

Commissioner of the Court

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Decision last updated: 21 January 2011