Brown v Goodbury

[2018] NSWLEC 1199

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brown v Goodbury [2018] NSWLEC 1199
Hearing dates:	9 April 2018
Date of orders:	26 April 2018
Decision date:	26 April 2018
Jurisdiction:	Class 2
Before:	Adam AC
Decision:	The application is dismissed.
Catchwords:	TREES: are all the trees part of a hedge – obstruction of views – obstruction not severe – effect of pruning on form and appearance of crepe myrtles
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Amendment Bill 2010 Uniform Civil Procedure Rules 2005
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Hough v Rettenmaier [2010] NSWLEC 1354 Johnson v Angus [2012] NSWLEC 192 Maynard v Mobbs [2011] NSWLEC 1416 McIntosh v Humphrey [2015] NSWLEC 1225 McKenzie v Selwood [2017] NSWLEC 1031 Salisbury v Harrison [2011] NSWLEC 1069 Tenacity Consulting v Warringah [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Richard Robert Michael Brown (Applicant) Ian James Goodbury (First Respondent) Undine Desiree Goodbury (Second Respondent)
Representation:	Counsel: R Brown (Applicant)   Solicitors: Litigants in Person (Respondents)
File Number(s):	2017/384639
Publication restriction:	No

Judgment

1. Extending southwards downslope from Turriell Point Road, Port Hacking, what was originally a large narrow block has been subdivided into a number of individual blocks, each containing a single residence. The residence of the respondents in this matter, Mr and Mrs Goodbury, is on the lowest of the blocks, reaching down to the foreshore of Little Turriell Bay. The residence of Mr Richard Brown, the applicant, is situated on the block immediately adjacent to, and uphill from, that of respondents. The properties have a north – south orientation.

2. On the respondents’ property are 12 crepe myrtle trees, said by the applicant to constitute two (or more) high hedges that obstruct views of, and across, Port Hacking from his property.

3. Crepe myrtles are generally small, and relatively compact, deciduous trees. There are a number of widely grown cultivars differing in flower colour and size. The older forms have been selected from Lagerstroemia indica but more recently hybrid Lagerstroemia indica x L.faurei have become available in the form of the Indian Summer series of cultivars. The plants the subject of the application are cultivar ‘Natchez’, which has white flowers. This is one of the smaller forms, but the estimates provided in information sheets from commercial nurseries are imprecise predictions as the achieved height can be strongly influenced by site conditions. The respondents suggest that their plants are growing under conditions of stress, due to the limited soil volumes in the planter beds affecting water availability and the high-temperature microclimate in summer so that it is unlikely that final height will be at the upper limit of predictions.

4. The appearance of the trees at the time of the hearing lent some support to the stress hypothesis. A limited number of leaves towards the tips of branches were displaying deep red autumn coloration, but a large number were brown and had probably been adversely affected by high summer temperatures.