Aplin v Quinlan

[2024] NSWLEC 1845

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Aplin v Quinlan [2024] NSWLEC 1845

Hearing dates:

11 December 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – obstruction of views – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Tweed Development Control Plan 2008

Category:

Principal judgment

Parties:

Ian Aplin (Applicant)
Paul Quinlan (Respondent)

Representation:

Counsel:
I Aplin (Self-represented) (Applicant)
P Quinlan (Self-represented) (Respondent)

File Number(s):

2024/362097

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Ian Aplin and Paul Quinlan are neighbours in Banora Point, a coastal township in northern New South Wales. A dispute over trees and views arose between them. Several trees on Mr Quinlan’s property obstruct part of the view from Mr Aplin’s dwelling. They discussed the trees and their respective wishes – principally, views for Mr Aplin and privacy for Mr Quinlan – before Mr Quinlan applied to Tweed Shire Council (Council) to prune six trees. Council determined that only two of those trees are prescribed trees requiring consent and refused consent to prune those two trees because they do not pose a significant risk to people or property. Council determined that the other four trees in the consent application are not prescribed trees, so Mr Quinlan may prune or remove them as he wishes without Council consent. Not content with Mr Quinlan’s offer to prune four trees, Mr Aplin applied to the Court seeking orders for Mr Quinlan to prune and maintain all six trees, as well as another group of three trees, at a height of 2.5 metres.

2. The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Both parties were self-represented.

The trees

3. Mr Aplin’s application included seven trees. He did not identify the trees and their locations were not shown accurately on the diagram he provided. Council’s refusal notice numbered six trees from north to south and showed those trees accurately. Mr Aplin’s application to the Court includes a group of three trees that were not in Mr Quinlan’s application to Council. Mr Aplin pointed out all of the subject trees at the onsite hearing. The trees considered in this decision are:

• native lychee (Dimocarpus australianus) ~ 10 metres tall;

• murraya (Murraya sp.) ~ 4 metres tall;

• weeping bottlebrush (Melaleuca viminalis) ~ 6 metres tall;

• blue lilly pilly (Syzygium oleosum) ~ 10 metres tall;

• unidentified species ~ 6 metres tall;

• black tea-tree cultivar (Melaleuca bracteata cv.) ~ 5 metres tall;

• photinia (Photinia sp.) ~ 5 metres tall;

• photinia (Photinia sp.) ~ 5 metres tall;

• photinia (Photinia sp.) ~ 5 metres tall.

4. Trees 1­–6 were already established when Mr Quinlan purchased his property 22 years ago. Mr Quinlan planted the three photinia (Trees 7–9).

5. Trees 1–5 (numbered from north to south as per Council’s notice of determination) are planted in a straight row, at regular intervals, close to the paling fence along the common boundary shared by the parties. Tree 6 is a greater distance from the common boundary and separated from Trees 1–5. Trees 7–9 are planted closely in a straight line further from the boundary than Trees 1–5.

6. All trees are healthy. Most have been pruned in the past but have regrown. Mr Aplin has pruned overhanging branches to the boundary where he can reach.

Framework for this decision

7. Mr Aplin has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

8. The orders sought, as clarified during the hearing, are orders the Court can make pursuant to s 14D of the Trees Act. Mr Aplin explained that pruning Tree 1 to reduce its crown spread, rather than its height, would sufficiently reduce the obstruction of his view caused by this tree. He wants all other trees in the application reduced to, and maintained at, a height of 2.5 metres. I note here that Mr Aplin understood the 2.5-metre threshold at s 14A(1)(b) of the Trees Act to be the “legal height limit” for hedges in New South Wales. He is certainly not the first self-represented party in tree disputes to hold this misunderstanding. Hedge height is not universally regulated in New South Wales. The 2.5-metre height threshold simply gives a minimum height of hedges that can be considered by the Court under Pt 2A of the Trees Act – hedges that do not rise to this height cannot be considered. All trees in Mr Aplin’s application are more than 2.5 metres tall.

9. Relevant issues to be determined in these proceedings are:

• Has Mr Aplin made a reasonable effort to reach agreement with Mr Quinlan: s14E(1)(a)?

• Does Pt 2A of the Trees Act apply to these trees? That is, are the trees planted so as to form hedges, as required at s 14A(1)(a) of the Trees Act?

• Do the trees severely obstruct a view from Mr Aplin’s dwelling, as required by s 14E(2)(a)(ii)?

• If those questions are answered in the positive, should orders be made once the trees’ benefits and Mr Quinlan’s interests are weighed against Mr Aplin’s interests: s 14E(2)(b)?

Reasonable effort to reach agreement

10. The record of text messages between the parties demonstrates that they discussed the issues but could not reach an outcome that satisfied Mr Aplin. At their second meeting the tone of their discussion soured and there was little chance of reaching an agreement. I am satisfied that Mr Aplin made a reasonable effort to reach agreement and that the timeframe for the hearing allowed for the required notice of the application: s 14E(1) of the Trees Act.

Are the trees planted so as to form hedges?

11. Trees 1–5 form a continuous block of foliage along the common boundary. Mr Quinlan suggested that a previous owner of his property planted these trees to form a privacy screen between the two properties. Despite the variety of species and their morphological differences, I am willing to accept that this planting of five trees forms a hedge, and was planted as one. Tree 6, which may have been planted at the same time, is physically separated from Trees 1–5 and is not part of this hedge. The three photinia planted by Mr Quinlan are in a different alignment to Trees 1–5 and form a separate hedge. That is, there are two hedges in this decision: Trees 1–5 in one hedge and Trees 7–9 in the other.

Do the trees severely obstruct a view?

12. The view from the western balcony of Mr Aplin’s dwelling is expansive, taking in more than 180° of the local valley to the west, the suburbs beyond, and then distant ranges. Between Mr Aplin’s dwelling and the common boundary are his driveway and some steps to his dwelling, so the trees are some distance from the balcony. Mr Quinlan’s land is significantly lower than Mr Aplin’s land, but the trees are tall enough to obstruct the central part of the view. The greater part of the view to the south and north of the trees remains. This obstruction counts for less than half of the overall view available from here.

13. Using the qualitative terms applied by Roseth SC in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 at [28], I find Mr Quinlan’s trees cause a moderate obstruction of Mr Aplin’s view, not a severe obstruction. It follows that the Court cannot make orders in these proceedings: s 14E(2)(a)(ii) of the Trees Act.

Balancing of interests

14. Had I found the trees severely obstructed a view, I would need to consider the interests of each party as well as the trees’ benefits, balancing reasons for and against interfering with the trees: s 14E(2)(b). I would need to consider the matters at s 14F.

15. Importantly, Trees 3 and 4 are prescribed trees under the Tweed Development Control Plan 2008. Mr Quinlan sought Council’s consent to prune the trees but Council refused to permit pruning, saying the trees posed no significant risk to people or property. In my mind, this fact would weigh significantly against ordering any interference with those two trees.

16. Trees 1–5 are well over 25 years old and were already mature trees when Mr Aplin moved to his property in 2016. In proceedings under Pt 2A of the Trees Act, the Court considers whether the applicant has lost access to sunlight or views that they previously enjoyed. Although the trees have grown taller since 2016, I find it likely that in 2016 they already obstructed the view of land across the valley, so only their obstruction of sky view has increased since then.

17. For these reasons, had I found the trees severely obstructed a view, I would not make orders to interfere with them.

Conclusion

18. For the reasons given above, the application is refused. I note that Mr Quinlan and Mr Aplin have discussed pruning options that would increase Mr Aplin’s access to views while maintaining Mr Quinlan’s privacy. They may yet find a way to resolve this dispute themselves.

Orders

19. The Court orders:

1. The application is refused.

2. The exhibits are returned other than exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Amendments

31 December 2024 - Coversheet amended to correct Class 1 to Class 2.

Decision last updated: 31 December 2024