Davidson v Bower

[2024] NSWLEC 1463

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davidson v Bower [2024] NSWLEC 1463

Hearing dates:

12 March 2024

Date of orders:

1 August 2024

Decision date:

01 August 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [41]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – cypress hedge – obstruction of views – whether the trees are planted so as to form a hedge – whether the obstruction is severe – privacy – balancing of interests – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

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

Swadel v Chissell [2022] NSWLEC 1513

Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140

Texts Cited:

AS4373-2007 Pruning of amenity trees

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

Trent Davidson (Applicant)
Phillip Bower (First Respondent)
Grace Bower (Second Respondent)

Representation:

Counsel:
T Davidson (Self-represented) (Applicant)
M Adamo (Solicitor) (Respondents)

Solicitors:
Staunton & Thompson Lawyers (Respondents)

File Number(s):

2023/449410

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Trent Davidson (the applicant) purchased his Clontarf property in 2018. Soon afterwards, Grace and Phillip Bower (together, the Bowers, or the respondents) purchased the adjoining property to Mr Davidson’s south. Mr Davidson’s land is a battle-axe property behind the Bowers’ property. The land here slopes up to the north, away from the water of Middle Harbour, so that Mr Davidson’s dwelling is higher than the Bowers’ property, with an extensive outlook to the south that potentially includes water views.

2. In a raised garden bed along the Bowers’ northern boundary, being the common boundary shared with Mr Davidson, is a row of mature cypress trees. For some time, Mr Davidson had an agreement with the Bowers regarding the height of these trees, and Mr Davidson, or his gardener, maintained the trees at the agreed height. However, negotiations between the parties broke down in early 2023, and the trees have not been pruned since. Mr Davidson found that the trees grew to obstruct his views.

The hearing and evidence

3. The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Mr Davidson was self-represented, while Mr Adamo represented the Bowers. Apart from what was observed during the site view, and some oral evidence I will come to below, the only evidence before the Court is contained in material filed by Mr Davidson, including a report from Jacki Brown, a consulting arborist at New Leaf Arboriculture, copies of correspondence between the parties, correspondence from the Community Justice Centres (CJC), and text messages between Mr Davidson and his gardener.

4. Mr Davidson wanted the Court to consider a view impact assessment report by Daniel Knight, of Urbaine Design Group. The report had not been filed with the Court nor served on the respondent prior to the final hearing. Mr Knight attended the hearing, with Mr…