Land and Environment Court New South Wales

• Medium Neutral Citation: Nevins & anor v Yeomans & anor [2011] NSWLEC 1037
• Hearing dates: 15 February 2011
• Decision date: 15 February 2011
• Before: Fakes C

Decision

1. Application to prune hedge upheld in part.

• Catchwords: TREES [NEIGHBOURS]; hedge; severe obstruction of a view; pruning ordered; Act does not apply to obstruction of sunlight to a garden.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr J Nevins (Applicant); Mrs E Nevins (Applicant); Mr A Yeomans (Respondent); Mrs S Yeomans (Respondent)
• Representation: Mr J Nevins [litigant in person] (Applicant); Mrs E Nevins [litigant in person] (Applicant); Did not attend hearing (Respondent)
• File Number(s): 20867 of 2010

Judgment

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

1 COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Banora Point against the owners of trees growing on an adjoining property.

2 The applicants are seeking the pruning of 12 trees to fence height and their ongoing maintenance at that height.

3 These orders are sought because the applicants contend that the trees block sunlight to their garden and severely obstruct their view of Banora Golf Course and more distant views to Coolangatta and the coast.

4 The applicants represented themselves at the hearing, however the respondents did not attend and nor did they did not nominate an agent to appear on their behalf. I note from the Court file that the respondents did not participate in the directions hearing on 20 December 2010. At that hearing, the Assistant Registrar gave the applicants leave to serve the directions by post and leave for substituted service of documents to the first respondent's father-in-law who resides on the property.

5 I am satisfied that these directions have been followed and that the hearing can proceed in the absence of the respondents.

The site inspection and hearing

6 The hearing commenced on site. The trees were briefly inspected from the respondents' property. The 12 trees subject to this application form part of a more extensive planting along the rear boundary of the respondents' property. That property consists of a number of detached dwellings; the two dwellings at the rear of the property closest to the applicants' property are tenanted. The closer of these 2 dwellings is to the northeast of the applicants' property and not far from the dividing fence.

7 The trees are a species of Lillypilly. They are numbered from 1-12 on the application, from west to east. There are other trees to the west of the nominated trees that are beyond the applicants' boundary.

8 The majority of the trees are approximately 5m high however trees 4 and 5 were pruned about 12 months ago and are currently about 3.3m high.

9 The applicants built their house about 17 years ago and positioned it to take advantage of the views to the north including Coolangatta, the hills towards West Tweed Heads and the airport, the extensive Banora Point Golf Course and distant views to the ocean. At that time, the land the respondents now own was vacant.

10 About 6 years ago, the respondents' property was developed and the trees planted.

11 According to the applicants, about 2 years ago, they approached the first respondent's father-in-law [who they describe as a caretaker of the property] regarding the loss of their view due to the growth of the trees. Permission was given to the applicants to prune trees 4and 5 to the fence line [measured at 2.2m at the hearing]. However, about 12 months later, the applicants received a letter from the respondents stating that the pruning was to stop. Mr Nevins, the first applicant believes this was due to a complaint or request from the tenant of the adjoining dwelling.

12 It is relevant to note that Mr Nevins suffered an illness that left him with severely reduced mobility and partial paralysis of his legs. As a result of this condition he spends many hours sitting on the patio and in the lounge room, both of which face north. As Mr Nevins was a keen golfer before his illness he values the view to the golf course.

13 It is also relevant to note that the view to the north is somewhat limited by the roofs of the closest two dwellings on the respondents' land, especially the one to the northeast. However, there is a view corridor between these dwellings that includes all of the landscape elements valued by the applicants.

14 The viewing points (V1-V5) nominated by the applicants are V1-V3 from west to east on the patio adjoining a living area and V4-V5 from the lounge room. The patio is incorporated into the house as a covered outdoor seating area. Due to the fall of the land, the viewing areas are effectively on the first floor when seen from the rear of the applicants' property.

15 The trees were viewed from both sitting and standing positions from each of the viewing points. As stated above, the critical view is the view that is not obstructed by the nearby dwellings that includes hills near West Tweed Heads, Coolangatta, the distant coast and the middle distance view of the golf course.

16 From viewing points V1 and V2, trees 3-7 have the most impact. From V3 the view of the middle distance is limited by rooflines however trees 2 and 3 obscure the skyline and distant view of the hills. Trees 10-12 do not obscure views of the landscape as the views in this direction are limited by the roof of the nearest adjoining dwelling. From a sitting position trees 6-9 do obstruct the desired view.

17 From V4 and V5 trees 11 and 12 do not obstruct the view, tree 10 provides a moderate obstruction and trees 6-9 severely obstruct the view. Trees 1-3 obstruct the skyline from a seated position but this could not be considered a severe obstruction.

The jurisdictional tests

18 I am satisfied that the 12 trees satisfy the test in s 14A of the Act in that the trees are planted so as to form a hedge, rise to a height of at least 2.5m and are on appropriately zoned land.

19 Of importance is s 14E(2), this states:

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

(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.

20 In this matter, the applicants are seeking orders to prune the trees to increase sunlight to their garden. However, this does not meet the jurisdictional test in s 14E(2)(a)(i); that is the obstruction must be to a window of a dwelling, and therefore this element of the application must be dismissed.

21 With respect to the loss of views I am satisfied that some of the trees do severely obstruct a view from the applicants' dwelling and therefore s 14E(a)(ii) is satisfied and the Court can then proceed to consider s 14E(2)(b) and the balance between the needs of the applicants, the trees and the respondents. This requires the Court to consider s 14F of the Act.

22 The relevant clauses in s 14F are:

(a) The trees are wholly located on the respondents' property.

(b) The trees were planted some 11 years after the construction of the applicants dwelling.

(c) The trees have grown to their current height of about 5m in that time.

(e) There was no evidence to suggest that the trees were planted as a condition of development consent for the respondents' property.

(f) Given the species, the trees are likely to make some contribution to biodiversity.

(g) The trees do contribute to the scenic value of the land on which they are growing.

(h) The trees are not of such a size or in a prominent location to make a significant contribution to public amenity.

(k) The trees are of a species and size that can be pruned without unduly affecting their health or function.

(l) They contribute to the privacy of the dwellings on the respondents' land however it is noted that at the reduced height of 3.3m (ie trees 4 and 5) from a standing position from any of the viewing points it is not possible to see into the private open space of the respondents' property even though the applicants' dwelling is upslope of that property. Trees 9-12 are likely to be the most important for privacy as they are planted between the adjoining property and the dividing fence.

(m) As previously stated, parts of the view are obstructed by roofs of nearby dwellings however the central part of the view is unobstructed by nothing other than the trees and the dividing fence.

(n) While the applicants were previously permitted to prune two of the trees, that permission has been withdrawn.

(p) The trees are evergreen.

(q) The main view is to the north and the house and its living areas have been oriented specifically to take advantage of that view. The applicants' own dwelling limits other views to the west and east thus little other view remains.

(r) The view is from the main living areas of the applicants' dwelling.

Conclusions

23 After viewing the site and the evidence I have concluded that trees 1 and 2 and trees 10,11 and 12, do not severely obstruct views from the applicants' dwelling and no orders will be made for any interference with these trees. However I consider that at present trees 3, 6, 7, 8 and 9 do severely obstruct views from the applicants' dwelling. Whilst trees 4 and 5 do not currently severely obstruct views they are part of the contiguous group of trees in the most valued viewing area and any orders for pruning should also apply to these trees.

24 In balancing the needs of the parties and the trees as required by s 14E(2)(b), I find that Mr Nevins' reduced mobility and therefore his necessarily more sedentary life must be taken into consideration. The applicants specifically sited their dwelling to take advantage of the views. The privacy of the respondents' property would not be significantly compromised if trees 3-9 were reduced in height and the trees themselves will not be detrimentally affected by pruning. However I do not consider fence height to be appropriate. The visual integrity of the hedge will be somewhat compromised but not sufficiently so as to refuse the application.

25 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application to prune the trees for a view is upheld in part.

(2) The application to prune the trees for sunlight to the garden is dismissed.

(3) The respondents are to engage and pay for an AQF level 3 (tradesperson) horticulturist or arborist to prune trees 3-9 to a height of 3m.

(4) Thereafter, the trees are to be maintained at a height no greater than 3.3m at the cost of the respondents.

(5) The initial pruning is to be carried out within 60 days of the date of these orders.

J Fakes

Commissioner of the Court

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Decision last updated: 03 March 2011