Bazett and McFadden v Bonser

[2020] NSWLEC 1668

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bazett & McFadden v Bonser [2020] NSWLEC 1668

Hearing dates:

1 December 2020

Date of orders:

1 December 2020

Decision date:

01 December 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted.

(2) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the four cypress trees forming a hedge along their western boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(3) The respondents are to give the applicants at least 2 days’ notice of the works.

(4) The applicants are to allow any access required to their property for the purpose of cleaning up debris.

(5) Any further hedge planting along the respondents’ western boundary is to be of a species that grows to no more than 4 metres in height at maturity.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of views – whether the obstruction is severe – privacy and other benefits – burden of ongoing maintenance – orders run with the land

Legislation Cited:

Land and Environment Court Act 1979

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

McDougall v Philip [2011] NSWLEC 1280

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

White v Baird [2014] NSWLEC 1189

Texts Cited:

2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’

Category:

Principal judgment

Parties:

Wendy Bazett (First Applicant)
Lyn McFadden (Second Applicant)
Keith Bonser (First Respondent)
Lindy Bonser (Second Respondent)

Representation:

W Bazett (Litigant in Person) (First Applicant)
L McFadden (Litigant in Person) (Second Applicant)
K Bonser (Litigant in Person) (First Respondent)
L Bonser (Litigant in Person) (Second Respondent)

File Number(s):

2020/152638

Publication restriction:

No

Judgment

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

Background to the application

1. Wendy Bazett and Lynn McFadden (‘the applicants’) purchased a vacant property in Ulladulla in 2011. At that time, there was already a row of four young Leyland Cypress (‘the trees’) on the neighbouring property belonging to Keith Bonser and Lindy Bonser (‘the respondents’). Ms Bazett and Ms McFadden completed construction of their dwelling in 2018, at which time the cypress trees had grown, but they still had a distant ocean view across the top of the trees from their main bedroom and a work room on the upper level of their dwelling. Since then, the trees have reached more than 6 metres in height, forming a dense screen only some two metres from these windows and completely obscuring the horizon view. They asked the Bonsers to prune the trees. The Bonsers, wishing to retain privacy and other benefits provided by the trees, did not prune them.…