Burns v Burkett

[2023] NSWLEC 1142

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burns v Burkett [2023] NSWLEC 1142

Hearing dates:

18 January 2023

Date of orders:

29 March 2023

Decision date:

29 March 2023

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The orders of the Court are:

(1)   The application is refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing views – balance between views and privacy

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2A, S 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

Steber v Job [2019] NSWLEC 1308

Tooth v McCombie [2011] NSWLEC 1004

Category:

Principal judgment

Parties:

Ulrike Burns (First Applicant)
Colin Burns (Second Applicant)
Daryl Thomas Burkett (Respondent)

Representation:

N Hanna (Solicitor) (Applicant)
D Burkett (Self-represented) (Respondent)

Solicitors:
Hanna Lawyers (Applicant)

File Number(s):

2022/297197

Publication restriction:

Nil

Judgment

Background

1. Mr and Mrs Burns, the applicants, occupied their property in Mount Warrigal in the Illawarra region, in 1998, while the respondent, Mr Burkett, purchased and occupied his property in 2011. The parties share an east - west rear boundary, and the applicants’ land is south of the respondent’s property.

2. In about 2006, the prior owner of the respondent’s property planted a row of Photinia x fraseri ‘Red Robin’ (Red Tip Photinia) (the trees) along the length of his rear boundary. Mrs Burns submitted that the trees were pruned by the prior owner of the respondent’s property once they grew tall.

3. Mr and Mrs Burns attached an array of photographs to their application. Each photographs included a date, and Mr Burkett did not dispute their veracity. A photograph dated 1 March 2013 displayed broad views of Lake Illawarra and the distant escarpment gained above the roofline of the respondent’s dwelling. Views were partially restricted by the applicants’ Grevillea bushes to the east and by the higher roofline of the dwelling of the respondent’s west side neighbour. A photograph dated 29 July 2017 showed that the hedge had grown to a height above 4 m, heavily obstructing the applicants’ desired view.

4. At Question 30 of the Tree Dispute Claim Details (Form G), with respect to efforts made to reach agreement, the applicants note that after their Solicitor, Mr Hanna of Hanna Lawyers, sent letters to the respondent on 22 August 2017, 3 October 2017 and 31 October 2017.

5. The letters from Hanna Lawyers demanded pruning of the trees by the respondent at a height of 2.5 m to restore the applicants’ view, subsequent maintenance of the hedge by the respondent at a height below 2.7 m, and also required Mr Burkett to enter into a signed legal agreement to that effect. The letter of 31 October 2017 threatened the commencement of legal action under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), should the respondent not comply.

6. Mr Burkett pruned the hedge to restore the applicants’ view and sent a letter acknowledging completion of the pruning to Hanna Lawyers on 3 November 2017. In the letter, the respondent said, “As I have done…