Coyle v Trevitt; Smith v Trevitt

[2020] NSWLEC 1538

Land and Environment Court

New South Wales

Medium Neutral Citation:

Coyle v Trevitt; Smith v Trevitt [2020] NSWLEC 1538

Hearing dates:

3 November 2020

Date of orders:

3 November 2020

Decision date:

03 November 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Proceedings 2019/403102

The orders of the Court are:

(1) The application is refused.

Proceedings 2020/39033

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications concerning neighbouring trees – whether the properties are adjoining – whether the trees are planted to form a hedge – whether the trees are severely obstructing a view

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:

Cavalier v Young [2011] NSWLEC 1080

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Category:

Principal judgment

Parties:

Proceedings 2019/403102
Ian Coyle (First Applicant)
Janet Coyle (Second Applicant)
Jennifer Trevitt (Respondent)

Proceedings 2020/39033
Graydon Smith (First Applicant)
Beverly Smith (Second Applicant)
Jennifer Trevitt (Respondent)

Representation:

Proceedings 2019/403102
J Coyle (Litigant in person) (Applicants)
J Trevitt (Litigant in person) (Respondent)

Proceedings 2020/39033
G Smith (Litigant in person) (First Applicant)
B Smith (Litigant in person) (Second Applicant)
J Trevitt (Litigant in person) (Respondent)

File Number(s):

2019/403102; 2020/39033

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. Two separate applications were made pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders to prune trees in the rear garden of a Vincentia property belonging to Jennifer Trevitt (the ‘respondent’). Graydon Smith and Beverly Smith (the ‘applicants’ in proceedings 2020/39033) have lived upslope of Ms Trevitt since 2010, at which time they had views above Ms Trevitt’s trees to Bowen Island. Janet Coyle and Ian Coyle (the ‘applicants’ in proceedings 2019/403102) have lived at their property since 2001, when Ms Trevitt’s trees were below her roofline and they had broad views beyond her property.

2. Each application must be considered separately on its own merits. They both seek similar orders: for all trees in Ms Trevitt’s back garden to be pruned to around 2.5 metres in height, or roughly the height of her roofline, and then maintained at that height. Each application includes 13 trees of various species, some along Ms Trevitt’s rear boundary and others growing throughout her garden.

The hearing

3. With COVID-19 restrictions preventing onsite hearings at the time, the parties agreed to the matter proceeding via audio-visual means. The parties had filed material including photographs, so that I was of the opinion that neither the hearing nor this decision would suffer from the lack of an onsite view.

Properties are adjoining

4. Applications can only be made for orders under the Trees Act (at s 14B) for trees on land adjoining the applicant’s land. The Smiths and Ms Trevitt share a common boundary, so the trees are on land that adjoins the Smiths’ property. The Coyles’ property and Ms…