Biggs v Bingham

[2019] NSWLEC 1282

Land and Environment Court

New South Wales

Medium Neutral Citation:	Biggs v Bingham [2019] NSWLEC 1282
Hearing dates:	19 June 2019
Date of orders:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application is upheld. (2)   Twice yearly during the months of May and November the respondents are to prune, or have a suitably experienced contractor prune, the 13 trees in the hedge to a height no greater than 2.2 metres, measured from the base of each tree. (3)   On reasonable notice, the applicants are to allow any access required for the works during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – privacy – approved landscape plan
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Category:	Principal judgment
Parties:	John Biggs (First Applicant) Kathleen Foy (Second Applicant) Matthew Bingham (First Respondent) Hilary Bingham (Second Respondent)
Representation:	J Biggs and K Foy, Litigants in person (Applicants) M Bingham and H Bingham, Litigants in person (Respondents)
File Number(s):	2019/61906
Publication restriction:	No

Judgment

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

The application

1. John Biggs and Kathleen Foy (‘the applicants’) have applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for trees in a neighbouring hedge to be pruned and maintained so as to restore views from their dwelling.

2. Matthew and Hilary Bingham (‘the respondents’) planted the trees according to landscape plans approved by Ku-ring-gai Council (‘Council’) as part of a development application.

The situation

3. A row of 13 Lilli Pillies (‘the hedge’) is planted as a hedge on the respondents’ side of the common boundary. The planting continues further to the north, but those trees are smaller and do not affect the applicants’ views. The hedge extends for the length of the applicants’ dwelling, beginning in line with its front corner, preventing overlooking into the respondents’ front garden and to the front of their dwelling, which is set back further from the street. The trees are more than three metres tall. They were pruned recently, after the application was made, reducing their height by approximately one metre.

4. The landscape plan stamped by Council shows eight Lilli Pillies to be planted along the boundary, with the hedge beginning approximately two metres back from the front of the applicants’ dwelling. Notations on the plan describe the trees as 3.5 metres at maturity.

5. Rooms affected by the hedge are, from the front of the applicants’ dwelling, the dining room, kitchen and a living room.

6. The applicants have lived here for 33 years; the respondents for 20 years. Prior to the respondents’ approved works, other vegetation grew along this boundary. The parties dispute whether that vegetation formed a hedge and to what extent it obstructed the applicants’ views.

Orders can be made for the trees

7. Part 2A of the Trees Act applies only to certain trees: they must be planted so as to form a hedge; and they must rise to 2.5 metres in height. It is not disputed that the Trees Act applies to trees in this hedge.

8. I am satisfied that the applicants have tried to reach agreement with the respondents (s 14E(1)(a) of the Trees Act).

9. After observing the views from the applicants’ dwelling, I am satisfied that trees in the hedge severely obstruct the view from their living room (s 14E(2)(a)(ii)). The trees are close to their dwelling and form a dense screen. The view obstructed includes the neighbourhood’s landscape, trees and distant hills. Having been pruned recently, the trees cause only a moderate view obstruction from the dining room and the kitchen. Nevertheless, having found the trees severely obstruct the applicants’ view, orders can be made. Before doing so, I must be satisfied that the applicants’ interests in having the trees pruned outweigh the reasons for avoiding any interference (s 14E(2)(b)).

Consideration of relevant matters

10. I have considered the matters at s 14F of the Trees Act and discuss the relevant matters below.

11. I accept the applicants’ submission that the view now obstructed was available to them in the past.

12. The applicants want the trees pruned to 2.2 metres twice each year. The respondents are willing to maintain the trees at approximately 3 metres in height, pruned twice each year.

13. The respondents submitted that a height of 3 metres is required to maintain their privacy. Any lower height would allow overlooking into their front garden from the applicants’ dwelling. They stated that the earlier vegetation along the boundary provided such privacy, and they simply wish to maintain that.

14. The applicants pointed out that any overlooking is only available from positions near their windows, where they do not spend extended periods. The respondents’ garden and the small pool at the front of their dwelling are open to the street. The issue of overlooking from the applicants’ dwelling is no greater than that from the public street.

15. I do not need to determine if the hedge planting complies with Council’s approved plans, although that might be a relevant consideration. The impact of the proposed planting can be difficult to assess at the planning stage. The key issues here are the severity of the present view obstruction for the applicants and the effects of any pruning on the respondents’ privacy.

16. I find that the adverse impact of the hedge on the applicants’ views is greater than the impact that pruning would have on the respondents’ privacy. Pruning the trees to a height of 2.2 metres would restore the applicants’ landscape views while still preventing some overlooking into the respondents’ front garden.

17. The trees will tolerate being pruned to a height of 2.2 metres. This will not affect their long-term viability. Pruning should be done during autumn and late spring.

Orders

18. Based on the above, the orders of the court are:

1. The application is upheld.

2. Twice yearly during the months of May and November the respondents are to prune, or have a suitably experienced contractor prune, the 13 trees in the hedge to a height no greater than 2.2 metres, measured from the base of each tree.

3. On reasonable notice, the applicants are to allow any access required for the works during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 26 June 2019