Abela v Hammond
[2019] NSWLEC 1160
•04 April 2019
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Abela v Hammond [2019] NSWLEC 1160 Hearing dates: 4 April 2019 Date of orders: 04 April 2019 Decision date: 04 April 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS):hedges – whether the trees are planted so as to form a hedge – obstruction of views – whether the obstruction is severe – agreement between neighbours Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Category: Principal judgment Parties: Beverly Abela (First Applicant)
Joseph Abela (Second Applicant)
Roger Hammond (First Respondent)
Simone Hammond (Second Respondent)Representation: A Abela, agent (Applicants)
S Hammond, litigant in person (Respondents)
File Number(s): 2018/372813 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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It is understandable that residential development is concentrated along our picturesque coastline, where we live often cheek by jowl with our neighbours, whose desires for privacy, views, amenity and enjoyment might conflict with our own.
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Prior to Roger and Simone Hammond (‘the respondents’) buying their Boomerang Beach property, the owners of that property grew banksias and paperbarks (‘the trees’) in their front garden. Their neighbours, Beverly and Joseph Abela (‘the applicants’) say they had an agreement allowing them to enter the property to prune the trees. Without pruning, these trees would grow up into the Abelas’ northward views of Boomerang Beach and Charlotte Head.
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The Hammonds are willing to prune the trees but want some control over how the trees are pruned and don’t want the Abelas entering their property.
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The Abelas applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for pruning the trees to fence height and maintaining them at that height. At the onsite hearing they clarified that they would accept pruning the trees a little below the height of the gutter along the lower roof at the front of the Hammonds’ dwelling, with the pruning done once or twice annually by a professional contractor, the costs being shared equally with the Hammonds.
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The Hammonds proposed pruning to the same height, once a year by a professional contractor engaged by them, with the costs paid by the Abelas or shared equally with them.
The framework for this decision
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For the Court to make orders, several jurisdictional tests within the Trees Act must be met: the trees must be planted so as to form a hedge (s 14A(1)(a)); they must be at least 2.5 metres tall (s 14A(1)(b)); and I must be satisfied that the trees are severely obstructing views from the applicants’ property (s 14E(2)(a)(ii)).
Findings
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Firstly, I find that the trees are not planted so as to form a hedge. The trees are not planted in a linear fashion; rather they are in groups throughout the garden on either side of the driveway. Trees on the southern side of the driveway are all banksias planted at irregular spacings. Their crowns do not form a dense screen. North of the driveway are both banksias and paperbarks, again planted in groups at irregular spacings, not in a linear fashion. Some are probably within the road reserve. The trees do not appear to form a hedge.
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Secondly, even if I could find that the trees form a hedge, I am not satisfied that they severely obstruct views from the Abelas’ dwelling. At present, one or two banksias obstruct the headland view from the deck and living area, but beach and water views remain. A paperbark obstructs a section of the landscape. Overall, considering the extent of the view remaining, I do not find the obstruction is severe.
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Mr Lavidis, from a property further south, offered comments regarding view obstruction from his own and other properties, but these are not relevant to my decision here.
Orders will not be granted but the parties reach agreement
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Due to my findings above, it follows that I cannot grant the orders sought by the Abelas. However the parties have a common interest in resolving this matter cleanly. By the end of the hearing, their positions were almost aligned. I wrote out the terms to which they agreed as follows:
In May each year the Hammonds are to engage a suitably qualified arborist or horticulturist (minimum AQF level 3), with all appropriate insurance, to prune the trees in their front garden (not trees within the road reserve or on neighbouring properties) so that all parts of these trees are at least 30 cm below the level of the guttering along the lower roof at the front of their dwelling.
Within 14 days of completion of the works each year, the Hammonds are to provide the Abelas with a receipted copy of the paid invoice for the works.
Within 14 days of receiving the invoice each year, the Abelas are to pay the Hammonds 50% of the invoice amount.
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Because these are not Court orders, the Hammonds would need to obtain from Midcoast Council any permission required for pruning the trees before carrying out the works.
Conclusions
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The Hammonds’ trees are not planted so as to form a hedge. I am not satisfied that they severely obstruct the Abelas’ views. I will not grant the orders they seek. The Court notes the terms of agreement reached by the Hammonds and Abelas today, set out at paragraph 10.
Orders
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As a result of the foregoing, the orders of the Court are:
The application is refused.
……………………………….
D Galwey
Acting Commissioner of the Court
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Amendments
02 May 2019 - Correction to typographical error at [9]
Decision last updated: 02 May 2019
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