Akerman v Neal

[2016] NSWLEC 1298

Land and Environment Court

New South Wales

Medium Neutral Citation:	Akerman v Neal [2016] NSWLEC 1298
Hearing dates:	1 July 2016
Date of orders:	01 July 2016
Decision date:	01 July 2016
Jurisdiction:	Class 2
Before:	Durland AC
Decision:	The application is dismissed
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; privacy; jurisdiction; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009)
Cases Cited:	Devile & anor v Frith & anor [2014] NSWLEC 1002 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	R Akerman (Applicant) G Neal (Respondent)
Representation:	R Akerman (Litigant in person) J Wilson (Solicitor for the respondent)
File Number(s):	2016/154058 (Formerly 2016/20175)

Judgment

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

1. This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning 8 xCupressocyparis leylandii (Leyland Cypress) trees located on a property at Bolton Point, Lake Macquarie.

2. The 8 Cypress trees are located along the rear (north/north eastern) boundary of the respondent’s property adjacent to the common boundary fence with the applicant’s property.

3. The trees are identified as T1 – T8 in the application and are planted approximately 1.5 metres apart except for T1 which is approximately 3 metres from T2. The trees are currently slightly taller than 5 metres and the width of each of the trees tapers to a narrow point at the apex. Even at the widest point at the base the foliage has not as yet joined together between the trees.

4. The applicant is seeking orders that the 8 trees be trimmed to a maximum height of 4 metres from ground level and that they be maintained at that height.

5. The applicant contends that the trees were planted in 2011 and that he purchased his land in 2008 and occupied the new house in 2010.

6. The respondent disagrees with the contended planting date and stated that he planted the trees in 2010 as he was concerned that his rear yard would be overlooked once the applicant’s 2 storey dwelling was occupied.

7. The orders are sought as the applicant claims that views of Lake Macquarie, the foreshore and Toronto on the opposite side of the lake are now severely obstructed by the Cypress trees. In the application 4 viewpoints (V1 – V4) have been nominated as being obstructed.

8. Ms Wilson, on behalf of the respondent, contends that the impact of the trees on the views are minor or moderate at worst.

9. The respondent stated that he intends to maintain the Cypress trees at the height seen at the hearing which is just greater than 5 metres. As previously stated the applicant seeks orders that the trees be maintained at a maximum height of 4 metres so that the views to the foreshore and across the lake are restored to the extent that existed when he purchased the land and occupied his newly constructed dwelling.

10. The applicant contends that there was an unobstructed view of the foreshore, boats, lake in general and the Toronto shoreline opposite prior to the planting and subsequent growth of the trees.

11. The applicant is concerned that the trees will grow much taller and wider increasing the obstruction of the views.

12. Both parties agreed that approximately 700mm of the narrow ‘wispy’ growth had recently been pruned from the top of each tree.

13. I noted, and made the point at the hearing, that if the trees were maintained at a height of 4 metres from the ground level on the applicant’s property this would provide privacy to the rear yard of the respondent’s property. Maintaining the trees at a height of 4 metres would also restore the views for the applicant much as they were at the time of occupation.

V1 and V2

14. V1 is the view from the living area and kitchen/dining room. The view to the lake can be seen through the glass doors that open onto the balcony beyond. V2 is the view from the balcony that faces the lake.

15. The applicant contends that from V1 and V2 the trees block up to 60% of the view of the lake, boats and shoreline on the opposite side of the lake.

16. When looking out to the view from V1 and V2 towards the south there is a Weeping Bottlebrush tree close to the lake that blocks a portion of the view to the water and the shoreline on the opposite side of the lake. Some of the Cypress trees are located behind this tree in the viewline and therefore create no further obstruction.

17. Views to the west are partially blocked by a mature Casuarina tree. The water view looking forward is partially obstructed by the tops of the Cypress trees however the immediate foreshore is obscured by the roof of the respondent’s garage and house as well as the Lomandra that is planted along the foreshore at the edge of a grassed area between the respondent’ s property and the water. The portion of the view that is obstructed by the Cypress trees, and that would be able to be seen if the Cypress trees were not there, is estimated be far less than 60% of the available view. The obstruction of the views caused by all or any group of the Cypress trees is considered to be minor to moderate at most.

V3 and V4

18. The applicant contends that the views to the lake and opposite foreshore from V3 and V4 are obstructed buy up to 60% by the Cypress trees.

19. Views from V3 and V4 are from 2 windows in the main bedroom. This room also contains a computer desk located near V3 and a reading chair located adjacent to V4.

20. The view from V3 is somewhat obstructed by the tops of T6, T5, T4 and T3 however there are still substantial views of the lake and the land on the far side of the lake.

21. The view from V4 is partially obstructed by the tops of some of the Cypress trees however there are also other elements of the landscape and built environment that are located between the Cypress trees and the lake view. Mature trees on the grassed area adjacent to the foreshore and also the roof of the respondent’s garage and house would be blocking some of the lake view if the Cypress trees did not exist. The additional obstruction caused by the top section of the Cypress trees is significantly less than 60% and is not considered to be severe.

Jurisdiction

22. Part 14A (1) of the Act applies to groups of 2 or more trees that are (a) planted so as to form a hedge and (b) rise to a height of at least 2.5 metres (above existing ground). Both parties agreed on site that part 14A applies to the 8 Leyland Cypress trees.

23. As part 14A applies I can then proceed to the jurisdictional tests at 14E (2)(a) that states that the Court must not make an order under this part unless it is satisfied that (a)(ii) the trees concerned 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.

24. The applicant would like the trees to be maintained at a reduced height to prevent severe obstruction of the views into the future.

25. Importantly, whilst s 14 B of the Act enables an owner of land to apply to remedy, restrain or prevent a severe obstruction of any view from a dwelling the use of the word ‘are’ requires that the trees are at the time of the hearing severely obstructing the view.

26. The Act sets a high bar in relation to what constitutes a ‘severe’ obstruction and in consideration of the aforementioned at (14) – (21) the obstruction of the view is not considered severe from any of the nominated view points. The Court therefore has no jurisdiction to make orders.

27. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148 and in Devile & anor v Frith & anor [2014] NSWLEC 1002 at [36] – [37] a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

28. As a result of the foregoing the application is dismissed.

Orders

29. The Orders of the Court are:

1. The application is dismissed.

L Durland

Acting Commissioner of the Court

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Decision last updated: 20 July 2016