Carter v Capito

[2017] NSWLEC 1740

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carter v Capito & anor [2017] NSWLEC 1740

Hearing dates:

20 December 2017

Date of orders:

20 December 2017

Decision date:

20 December 2017

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1) The application is upheld.

 

(2) Within 60 days of the date of these orders, and then annually in November beginning November 2018, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3 in Arboriculture) with appropriate insurance to prune each tree in the hedge to a height no greater than 3.0 metres above its base where it enters the ground, and remove any resulting debris from the applicant’s property.

 

(3) The works in (2) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.

 

(4) The respondents are to give the applicant seven days’ notice of the works in (2).

 (5) Should it be required, the applicant is to provide all reasonable access for the works in (2) to be done during reasonable hours of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; balancing of privacy and view restoration; orders for annual pruning.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

Norman Carter (Applicant)
Alfonso Capito (First Respondent)
Maria Capito (Second Respondent)

Representation:

Norman Carter, Litigant in Person (Applicant)
John Capito, Agent (Respondents)

File Number(s):

273327 of 2017

Publication restriction:

No

Judgment

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

Background

1. In 2001 Maria and Alfonso Capito (‘the respondents’) planted a row of Leyland Cypress trees (‘the hedge’) on their property, along the common boundary shared with the Carters’ property. At that time, Mr Carter (‘the applicant’) expressed his concerns about the species being planted and the potential for the trees’ potential height and density to obstruct his view. The Capitos replied that they had been advised that the trees were an appropriate choice for the site.

2. The Cypress trees then grew up and, according to Mr Carter, obstructed their view. Mr Carter says he asked for the trees to be pruned. The Capitos engaged someone to prune the trees in 2014, but not to the extent requested by Mr Carter. According to Mr Carter, the Capitos offered to undertake more pruning if he would prune back his sheoke tree that overhangs their boundary and drops debris onto their roof and guttering. The parties were unable to reach any agreement at that time. So now, in 2017, Mr Carter has applied to the Court pursuant to s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the trees to be pruned to a height of 2.5 metres above ground level on his property.

3. The Capitos say Mr Carter has made no further attempt to resolve the issue since 2014. Mr Carter says there was no point, as it was clear in 2014 that they would not be able to reach an agreement. I accept his contention.

Framework for deciding the matter

4. If I find that the trees form a hedge, and severely obstruct a view from Mr Carter’s dwelling, I must consider a range of matters at s 14F of the Trees Act before deciding on any orders, such as those at s 14D, that should be made to address the issue.

Applicant’s submissions

5. The trees were planted during the time Mr Carter has lived at the property, so they have grown up and obstructed a view he says he had previously enjoyed.

6. Mr Carter says other trees on his property and the Capito property might partly obstruct the views, but they do not create a dense screen that blocks the entire view like the cypress trees do.

7. Mr Carter says pruning the trees to a height of 2.5 metres above ground level on his property would restore his views and maintain privacy for both parties.

Respondents’ submissions

8. The Capitos argue that their cypress trees do not obstruct views from the Carter property.

9. The Capitos say they need the trees for privacy. However, they are willing to prune them to a height equivalent to the lower edge of their roofing, as this would maintain their privacy.

10. The Capitos argue that other trees on both properties, as well as more distant trees and rooftops, obstruct any view from the Carter dwelling, and that the cypress trees could only obstruct a bit of sky view.

11. The Capitos also proposed alternative orders for pruning Mr Carter’s sheoke, but that is a separate matter and there is no jurisdiction within Part 2A of the Trees Act for me to make such orders.

Findings

12. The Carter property is uphill from the Capito property. Their house is some 15 metres from their rear boundary, which is part of the Capitos’ side boundary.

13. Eleven or so Leyland Cypress trees are planted at one-metre spacings along the boundary. The trees are 8–9 metres tall. They form a dense screen.

14. The Capitos planted the trees for privacy. It is clear that the trees are planted so as to form a hedge.

15. In the absence of the cypress trees, views from Mr Carter’s dwelling would include the landscape of suburban Roseville Chase, its houses and trees, as well as sky above. Other trees within his garden and more distant trees would partially obstruct those views, but the overall sense of a filtered landscape view would be present. This view was available to Mr Carter before the cypress trees were planted, but now is lost to him.

16. Although some 15 metres from his dwelling, the row of trees is like a solid wall 8–9 metres tall along his rear boundary. I am satisfied that the view obstruction is severe enough, as required at s 14E(2) of the Trees Act, for the Court to make orders.

17. I used a height pole during the hearing to establish tree height, and to determine what height might be best to restore views for Mr Carter and maintain a sense of privacy for the Capitos. Most of Mr Carter’s view could be restored if the trees are pruned to a height of 3 metres. This would be lower than the roof edge above the Capitos’ porch area, but would appear to maintain most of their privacy. Furthermore, orders for annual pruning are required to prevent the obstruction recurring, and this will allow some vertical growth above 3 metres in between each year’s pruning.

18. Pruning cuts will be 100–150 mm in diameter. This might leave the tops of the trees looking bare at first, and smaller cuts would usually be preferred. Had the trees been pruned to this height several years ago, the pruning cuts would have been significantly smaller.

19. As is usual for these matters, the respondents will bear the cost of pruning their trees. The end of year approaches, so they will be given 60 days to carry out the initial pruning. Subsequent pruning is to occur in November each year.

Orders

20. As a result of the foregoing, the orders of the Court are:

1. The application is upheld.

2. Within 60 days of the date of these orders, and then annually in November beginning November 2018, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3 in Arboriculture) with appropriate insurance to prune each tree in the hedge to a height no greater than 3.0 metres above its base where it enters the ground, and remove any resulting debris from the applicant’s property.

3. The works in (2) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.

4. The respondents are to give the applicant seven days’ notice of the works in (2).

5. Should it be required, the applicant is to provide all reasonable access for the works in (2) to be done during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 December 2017