Land and Environment Court
New South Wales

Medium Neutral Citation:: Ingram v Sebel [2011] NSWLEC 1010
Hearing dates:: 25 January 2011
Decision date:: 25 January 2011
Jurisdiction:: Class 2
Before:: Brown C
Fakes C
Decision:: 1. Application upheld in part.
Catchwords:: TREES [NEIGHBOURS]; hedge; severe obstruction of a view; consent orders; removal of 10 trees; pruning of 2 trees
Legislation Cited:: Trees (Disputes Between Neighbours) Act 2006
Category:: Principal judgment
Parties:: Mr J Ingram (Applicant)
Mrs L Sebel (Respondent)
Representation:: Mr J Ingram [litigant in person] (Applicant)
Mrs L Sebel [litigant in person] (Respondent)
File Number(s):: 20813 of 2010

Judgment

1This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Clifton Gardens against the owner of 12 trees growing on an adjoining property.

2The applicant is seeking the removal of the trees on the basis that they severely obstruct views from his dwelling, or as a secondary position, the pruning of the trees. The obstructed views are generally to the southwest to Taylors Bay, Bradley's Head, Sydney Harbour, and the skyline of the Sydney CBD and eastern suburbs. The nominated viewing areas are the ground floor, the kitchen, living area and associated terrace on the first floor and bedrooms and terrace on the second floor.

3The trees are 11 Melaleuca quinquenervia (Broad-leafed Paperbark) and one Cupressus macrocarpa (Cypress) growing at the base of a retaining wall along the common boundary between the respondent's property and the applicant's property at the rear of the respondent's property.

Relevant background

4The respondent planted the trees in 1963 following the construction of her house. Prior to this the site had been a vacant lot. She informed the Court that at the time she was told that the trees would only grow to about 5 m.

5In 2003, Mosman Council gave permission, under the Mosman Council Tree Preservation Order, to prune the Paperbarks to reduce their height. It appears that the trees were heavily and unsympathetically lopped. In an arborist's report prepared for the applicant following that pruning, there is a suggestion that the trees had been pruned some years previously resulting in a tall and narrow habit with most of the foliage in the upper part of the canopy. The advice of the arborist at that time was that the lopping would lead to stress and the production of fast growing vertical epicormic shoots. It would appear that after the 2003 pruning that prediction was correct and some trees produced vigorous regrowth and two trees died.

6In 2010, the applicant reapplied to council for further pruning of the trees. Council gave permission to reduce the height of the trees by 15% and selectively thin the 11 Paperbarks, the Cypress and 2 other trees not subject to this application. The trees at that time were 14-15m tall.

7This work was carried out in October 2010. It appears as though little if any work was undertaken on the Cypress however the lopping of the Paperbarks would seem to be in excess of the reduction specified by council.

8At the site inspection for the hearing it was observed that some of the trees are dead and others are starting to shoot. The view from the first floor of the applicant's dwelling is one of multiple stems. At present views from the ground floor and the second floor are unaffected by the trees in question. The respondent stated that she was somewhat shocked by the extent of the pruning and the appearance of the trees.

9Following the lodgement of the application, the parties held further discussions and Consent Orders were prepared (Exhibit B). The Consent Orders stated:

(1)The Respondentshall, within 14 days of the date of this Order, apply to Mosman Municipal Council for permission to remove 10 Me!aleuca qulnquenervia trees (commonly known as Broad-leafed Paperbarks) ("the Paperbarks") located near the boundary between the Applicant's and the Respondent's properties, identified as T1 to T10 in the Application.

(2)Subject to approval by Mosman Municipal Council of the application referred to in order 1, the Respondent shall remove the Paperbarks within 28 days after the date of the Council approval.

(3)The Respondent shall, within 28 days after the date of the Council approval referred to in order 2, prune the Cypress, Cupressus macrocarpa 'cv' (referred to in the Application as T12) by selectively thin branches to maintain views and improve crown form, to the maximum extent permitted by Mosman Municipal Council in accordance with a Tree Preservation Order Assessment issued by the Council to the Respondent dated 18 August 2010, so as to restore the views obstructed by the growth of that tree, and shall maintain and prune that tree as may be required from time to time so as to maintain such restored views.

(4)Note the agreement of the parties that they will engage Arborlink Consultancy to obtain quotations to carry out the works referred to in orders 2 and 3, recommend the scope of the works and the preferred contractor and supervise the works. Each party must give any consent reasonably required to enable the selection and appointment of a contractor to carry out the works and, in the event of any disagreement, shall accept the recommendation of Arborlink Consulting. Upon completion of the removal of the Paperbarks and the thinning of the Cypress the Applicant and Respondent must each pay one half of the costs of the removal of the Paperbarks and the thinning and pruning of the Cypress.

(5)The Respondent be restrained from planting or growing any replacement trees or shrubs along or near the common boundary which trees or shrubs are likely to grow to a height exceeding RL44.5 (1.5 metres above the height of the common boundary fence).

(6)The Respondent must maintain and/or prune any trees or shrubs along or near the common boundary including the Paperbark referred to in the Application as T11 (but excluding the Cypress. Cupressus macrocarpa 'cv' referred to in the Application as T12) at a height not exceeding one metre above the height of the common boundary fence, provided that the cost of such pruning shall be paid equally by the Applicant and the Respondent.

(7)The Respondent be restrained from causing or permitting any other trees or shrubs on or near the common boundary between the Applicant's and Respondent's property from growing to a height of more than RL44.5 (or one metre higher than the common boundary fence between their respective properties).

(8)Each party pay their own costs of the Application.

The framework for consideration

10Section 14A(1) provides:

14AApplication of Part

(1) This Part applies only to groups of 2 or more trees that:

(a)are planted (whether in the ground or otherwise) so as to form a hedge, and

(b)rise to a height of at least 2.5 metres (above existing ground level).

11Section 14B provides:

14BApplication to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a)sunlight to a window of a dwelling situated on the land, or

(b)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.

12Section 14D(1) provides:

14DJurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

(a)sunlight to a window of a dwelling situated on the applicant's land, or

(b)any view from a dwelling situated on the applicant's land,

if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

13Section 14D(2) provides the powers to make an order under subsection (1).

14Section 14E(2) provides:

14EMatters of which Court must be satisfied before making an order

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

(a)the trees concerned:

(i)are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

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

(b)the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

15Section 14F provides for the matters to be considered by the Court before determining an application.

Findings

16Based on the site inspection, we are satisfied that the 11 Paperbarks and the Cypress satisfy the requirements of s 14A(1) in that the trees are planted so as to form a hedge and rise to a height of more than 2.5m.

17Section 14D(1)(b) raises two separate matters. First, there must be an obstruction of "any view" from the applicant's dwelling and second, any obstruction must be "severe".

18On the first matter, we are satisfied that there is a view available in a generally south-westerly direction from the balcony area adjoining the living room on the first floor. At present, the trees in question substantially block views from this location and in our opinion, s 14E(2)(a)(ii) is satisfied. The trees do not presently severely block views from the ground floor and the second storey and therefore do not fall within s 14E(2)(a)(ii) and no orders can be made in relation to the view impact from these locations.

19With respect to what orders the Court may make under s 14D, the parties have prepared Consent Orders. However, in agreeing to the relevant matters in the Consent Orders we must be satisfied that the provisions of the Act are met with respect to the trees subject to the application and the proposed orders are orders that can be made under s 14D of the Act.

20We are of the opinion that the lopped Paperbarks, particularly trees 1-10, are the trees that most severely obstruct the view from the applicant's dwelling. Given their form and condition, there is no pruning option that could be practically carried out to reduce their height, maintain a reasonable degree of health and restore views, particularly in the long term.

21We agree with the approach in the Consent Orders that propose the removal of trees 1-10 and their replacement with trees and shrubs that are to be maintained at a height of no more than 1.5m above the dividing fence or of RL 44.5.

22Tree 11 and the Cypress block a portion of a view to the west but this view is also constrained by other more distant trees. The respondent stated that these trees provide shade to the rear of her property. We are not satisfied that the severity and nature of the obstruction is such that an order should be made to remove these trees but some selective pruning may be reasonable to achieve a balance between the needs of the applicant and those of the respondent. However, we agree with the Consent Orders that propose that trees 11 and 12 are to be selectively pruned and thinned to enable filtered views through these trees.

23We agree that the Consent Orders are a helpful and relevant basis for the orders because of our assessment under s 14E(2) of the Act however some amendments are required. These are;

(1)The deletion of Order 1 and the reference for approval to be obtained from Mosman Municipal Council (the council).

(2)The amendment of order 2 to remove the reference to the approval by the council.

(3)The appropriate date for the timeframes in the orders to be the date of the orders of the court rather than the approval of the council.

(4)The deletion of order 4 as it is largely replicated by order 7.

(5)The reference to the maximum height of any plantings of RL 44.5 to also include a reference to an alternate height of '1.5m above the height of the common boundary fence'.

(6)Minor drafting changes to reflect the changes in the orders.

Orders

24For the reasons set out in the preceding paragraphs, the Orders of the Court are:

(1)The application is upheld in part.

(2)The Respondent shall remove the Paperbarks within 28 days after the date of the Orders of the Court.

(3)The Respondent shall, within 28 days after the date of the Orders of the Court referred to in order 2, prune the Cypress, Cupressus macrocarpa 'cv' (referred to in the Application as T12) by selectively thin branches to maintain views and improve crown form, to the maximum extent permitted by Mosman Municipal Council in accordance with a Tree Preservation Order Assessment issued by the Council to the Respondent dated 18 August 2010, so as to restore the views obstructed by the growth of that tree, and shall maintain and prune that tree as may be required from time to time so as to maintain such restored views.

(5)The Respondent must maintain and/or prune any trees or shrubs along or near the common boundary including the Paperbark referred to in the Application as T11 (but excluding the Cypress. Cupressus macrocarpa 'cv' referred to in the Application as T12) at a height not exceeding RL 44.5 or 1.5m above the height of the common boundary fence, provided that the cost of such pruning shall be paid equally by the Applicant and the Respondent.

(6)Each party pay their own costs of the Application.

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G T Brown

Commissioner of the Court

J Fakes