Economos v Warden

[2025] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:

Economos v Warden [2025] NSWLEC 1108

Hearing dates:

24 January 2025

Date of orders:

26 February 2025

Decision date:

26 February 2025

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The orders of the Court are:

(1)   The application is upheld in part.

(2)   Within 3 months of the date of this judgment, the applicant is to engage and pay for an AQF level 3 arborist to prune trees numbered 1, 2 and 3 to a height of 2.5 metres above the top of the existing Colorbond fence (to the previous pruning stubs). Any pruning is to be in accordance with the relevant provisions of AS4373-2007 Pruning of Amenity Trees.

(3)   The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4)   Commencing 36 months after the first pruning, the work in (2) is to be undertaken every 36 months for the life of the trees.

(5)   The respondent shall provide reasonable access to the property for a contractor to undertake pruning works set out in (2).

(6)   The application to remove the trees is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, s 12, Pt 2A ss 14A, 14B, 14E, 14F

Cases Cited:

Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Standards Australia, AS4373-2007: Pruning of Amenity Trees, 2007

WorkCover NSW, Code of Practice: Amenity Tree Industry, 1998

Category:

Principal judgment

Parties:

Peter Economos (Applicant)
John Warden (First Respondent)
Angie Warden (Second Respondent)

Representation:

Peter Economos (Self-represented)
John Warden (Self-represented)

File Number(s):

2024/367628

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Mr Economos submitted an application, pursuant to s 14 B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act).

2. Mr Economos has occupied the property since approximately 2014. The property contains a rear elevated deck with views generally to the north across Lake Illawarra. Views are also present from the elevated deck to the west and east, across the lake and district across side boundaries.

3. The respondent, Mr Warden owns the property to the north of the applicant at 101 Landy Drive, Mount Warrigal. Along the rear boundary of the respondent's property there are three trees planted more than 20 years ago. These trees provide privacy to the respondent's property from the elevated deck of the applicant's dwelling. Photographs taken submitted by the applicant, display views of the lake to the north, east, and north-east. Mr Warden contends maintaining the trees is necessary for the maintenance of privacy.

4. The applicant contends that the trees growing on the respondent's property block the views and will soon further block the views to a severe degree if not maintained adequately. The height of the trees has previously been maintained by pruning at approximately 6 metres above ground level. Evidence of previous pruning stubs on the trees was measured at 2.5 metres from the top of the Colorbond fence located along the shared boundary. Recent pruning of the trees has not occurred due to physical limitations of the respondent. The respondent is agreeable to having the trees pruning to the previous pruning height. The respondent submitted evidence that the Council has no objection to pruning of the trees to the previously pruned height.

5. The existing Colorbond fence between the properties stands at 1.5 metres high.

6. In the application under Pt 2A, Mr Economos seeks orders to trim and maintain trees to a height to reinstate the views previously enjoyed before the trees grew in height.

The hearing

7. The hearing commenced with an inspection of Mr Warden's rear yard. The trees were located at the southern boundary of the rear yard. The trees were generally even in height reaching approximately 6-7 metres above ground level.

8. The trees were then viewed from the applicant's property and in particular from the rear elevated deck. Mr Warden emphasised the desire to retain the existing trees for privacy and strongly resisted pruning lower than the previously pruned height. To the north, east and west there are lake and district views.

9. Viewed from the applicants' deck, the trees partially blocked views to the north, across to the lake. Options for pruning, which provided for both views and privacy, were explored with both parties.

10. The Court assembled in the applicant's rear yard for submissions. Both parties were self-represented.

Jurisdictional requirements – Part 2A

11. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

12. The first test is s 14A(1), that is, are the trees planted along the southern boundary of the respondent's rear yard, a hedge for the purposes of the Act?

13. Section 14A(1) states:

(1) This Part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

14. The trees were planted more than 20 years ago next to each other forming a hedge, now reach a height of about 7 metres in height, s 14A(1) is satisfied. The trees continue to grow vigorously and increase in height.

15. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.

16. Section 14E(2)(a)(ii) states:

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

…

(ii) are severely obstructing a view from a dwelling situated on the applicant's land.

17. The applicant's residence is upslope from that of the respondent. The dwelling has rear living areas designed to capitalise on views towards the lake to the north.

18. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (‘Tenacity’), and this case was referenced by Mr Economos in his submission.

19. The first three steps of the four step process are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

20. In applying those principles to the hedge, the view in contention spans approximately 60 degrees of lake water.

21. Considering the third step of Tenacity, the extent of the impact for the whole of the property is severe. The views from the rear living area and the adjacent deck, which is included as a living area under the Act, are blocked by Mr Warden's trees. The trees have previously been pruned by the applicant and respondent over the years. The applicant is seeking continued and regular pruning of the trees to maintain water views of the lake.

22. Though the Court sets a high bar when considering the word “severe”, I am satisfied the trees are severely obstructing a view from a dwelling situated on the applicant’s land, and the Act is therefore engaged (s 14E(2)(a)(ii)).

23. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

24. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

1. (a) The trees are located in the respondent’s property parallel to and close to their southern boundary.

2. (b) The trees were planted approximately over 20 years ago.

3. (c) The trees have grown to their current height of 7 metres since that time.

4. (d) The trees are protected by Council’s Tree Management controls under its Development Control Plan, however Council is agreeable to pruning to the height attained by previous pruning.

5. (g) The trees are likely to make a minor contribution to biodiversity.

6. (i) The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity.

7. (k) The trees can normally be regularly pruned without unduly affecting their health or function. Pruning may result in thicker growth, and thus enhance the hedge’s utility for the respondents.

8. (l) Being higher up the hill, and on the upper level, the applicants’ veranda and rear living area overlooks the respondent’s rear yard, and the trees contribute significantly to providing privacy for the respondent.

9. (n) The trees have been previously been pruned by the respondent and the applicant. The continued pruning arrangements remain in contention, particularly as to the maintenance of a maximum height of the trees so as not to impact views of the applicant.

10. (p) The trees are evergreen.

11. (q) The lake water view across the northern boundary of the applicant’s property is severely affected by growth of the trees.

12. (r) The obstructed view is from a living room and rear elevated deck, and the view is severely restricted by the trees without regular pruning.

25. In summary, pruning of the trees will be ordered so the lake views are retained for the applicant (to a height of 6 metres above ground level), while retaining most of the trees benefits of privacy and landscape amenity for Mr Warden. This will result in little loss of amenity for the respondent, and significant benefit for the applicants.

Discretionary matters – s 12

26. In making an order, the Court considers relevant matters in s 12 of the Act. Factors already considered in s 14F will not be duplicated.

1. (b2) Trees can normally be regularly pruned to maintain height without noticeable impact on their health and function. Bushier growth normally develops on the stems below the pruning cuts, potentially enhancing the respondent’s privacy.

2. (b3) The trees contribute significantly to providing privacy for the respondent, particularly in the rear yard, and upstairs veranda. They also add to garden design and the amenity value of the garden.

3. (c) There is nothing other than the trees that is likely in the near future to cause damage to the applicants’ property. Both parties are seeking orders to resolve the dispute over the ultimate height of the trees and costs.

Conclusion

27. The impact to views is currently severe. Pruning of the trees has been undertaken previously in order to maintain views. The benefits the trees provide in terms of privacy will not be much affected, as long as a pruning program is employed which maintains the screening benefit the trees provide for the respondent, while maintaining a maximum height to maintain views from the applicant's property.

28. When an application is successful, the cost burden for carrying out orders normally falls on the respondent, however, aside from view maintenance there is no reason to prune the trees. The benefits gained by ongoing tree pruning go directly to the applicant. For this reason, in this case the costs of tree pruning shall be borne by the applicant.

Orders

29. The orders of the Court are:

1. The application is upheld in part.

2. Within 3 months of the date of this judgment, the applicant is to engage and pay for an AQF level 3 arborist to prune trees numbered 1, 2 and 3 to a height of 2.5 metres above the top of the existing Colorbond fence (to the previous pruning stubs). Any pruning is to be in accordance with the relevant provisions of AS4373-2007 Pruning of Amenity Trees.

3. The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4. Commencing 36 months after the first pruning, the work in (2) is to be undertaken every 36 months for the life of the trees.

5. The respondent shall provide reasonable access to the property for a contractor to undertake pruning works set out in (2).

6. The application to remove the trees is dismissed.

P Nichols

Acting Commissioner of the Court

**********

Decision last updated: 26 February 2025