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.)…