Akhurst v Fletcher

[2023] NSWLEC 1534

Land and Environment Court

New South Wales

Medium Neutral Citation:

Akhurst v Fletcher [2023] NSWLEC 1534

Hearing dates:

14 June 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –high hedges – views and privacy – were the trees planted so as to form a hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

Hickey v Inman [2022] NSWLEC 1491

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

McDonald v Sheehan [2022] NSWLEC 1159

Wein v Reeves [2022] NSWLEC 1019

Wisdom v Payn [2011] NSWLEC 1012

Category:

Principal judgment

Parties:

William John Akhurst (First Applicant)
Roslyn Helen Akhurst (Second Applicant)
Claire Eileen Fletcher (Respondent)

Representation:

Counsel:
W Akhurst, (Self-represented) (Solicitor) (First and Second Applicant)
C Fletcher (Agent) (Respondent)

Solicitors:
Stacks Law Firm, Forster (First and Second Applicant)

File Number(s):

2023/88251

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: William and Roslyn Akhurst, the applicants, who occupied their Forster property in 1987, have for many years enjoyed views of One Mile Beach, Cape Hawke, and the ocean from their living area, kitchen, and rear balcony, across the top of trees in neighbouring properties. In the recent past, trees in an adjacent property have grown to obstruct these views.

2. The property of the respondent, Claire Fletcher, is located east of and at a lower level than the applicants’ land and the trees provide screening and contribute to the respondent’s garden. In the absence of the trees, the applicants would be exposed on their rear balcony, from which they overlook the respondent’s house and rear yard. The parties access their properties from different streets and the common boundary is where the eastern corner of the applicants’ property meets the western corner of the respondent’s land. The parties’ rear boundaries are oriented from north-east to south-west.

3. Mr Akhurst, a solicitor, wrote letters of demand to Ms Fletcher on 27 January 2023, 6 February 2023, 10 February 2023, and 20 February 2023, which proposed pruning and maintenance of the respondent’s trees at a height of 2.5 metres (m) to relieve view obstruction, at the applicants’ cost. Mr Akhurst also noted provisions in the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) “for a relevant application to the Land and Environment Court”, and said, “We wish to avoid this if possible”.

4. Regrettably, all these letters were sent to the wrong address, an empty dwelling across the road from Ms Fletcher, and to a disused email. Therefore, the initial notification of the proposed tree pruning was upon service of the application, pursuant to s 14B of Pt 2A of the Trees Act, on 23 March 2023, followed by an amended application with the respondent’s correct address, on 31 March 2023. At this time, Ms Fletcher was recovering in hospital from surgery, and the application was served on the respondent’s daughter, Raelene.

5. The…