Gillis v Seferian

[2011] NSWLEC 1199

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gillis v Seferian [2011] NSWLEC 1199

Hearing dates:

15 July 2011

Decision date:

15 July 2011

Jurisdiction:

Class 2

Before:

Morris C and Galwey AC

Decision:

(1)The respondent is to engage and pay for a suitably qualified and experienced horticulturist or arborist to prune the Cypress trees to a height of no more than 3.3 metres above the top of the southern (lower) section of the rear boundary wall, measured from the top of the wall adjacent to the third tree from the south.

(2)Thereafter, at the cost of the respondent, the trees are to be maintained at a height no greater than 3.7 metres above the top of the southern (lower) section of the rear boundary wall, measured from the top of the wall adjacent to the third tree from the south.

(3)The initial pruning is to be carried out within 30 days of the date of these orders.

Catchwords:

TREES [NEIGHBOURS]; hedge; severe obstruction of a view; consent orders; pruning ordered.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

Category:

Principal judgment

Parties:

R Gillis (Applicant)

G and T Seferian (Respondents)

Representation:

R Gillis (Applicant in person)

G Seferian (Respondent in person)

File Number(s):

20218 of 2011

Judgment

1. This is an application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Seaforth against the owners of trees growing on an adjoining property.

1. The applicant is seeking the pruning of nine trees to reduce their height and thus restore the view she says she has lost. She also seeks orders for the trees to be maintained at that height into the future.

Relevant background

1. Prior to lodging the application, the applicant had sent letters to the respondent requesting that the trees be pruned but had not received any response.

1. Since the application was lodged, the respondent has obtained permission from Manly Council to prune the trees.

Onsite view

1. It became apparent from the outset of the onsite view that both parties were in general agreement as to an outcome that would meet the needs of both.

1. There are nine Leyland Cypress (x Cupressocyparis leylandii 'Leighton Green') planted in a row in the respondent's property along the rear boundary.

1. The applicant wants the trees pruned to a height that would restore the views from her dwelling of Balgowlah Heights and Sydney Harbour, including Middle Head and South Head, but maintain screening to the respondent's dwelling.

1. The respondent expressed his willingness to reduce the height of the trees to restore the view so long as the privacy provided by the trees to his dwelling was maintained.

1. Both parties agreed that, if the trees were maintained at a height at the view line between a standing position on the applicant's rear second storey balcony and the front of the respondent's roofline, this would restore the view and maintain privacy.

1. Using a pole we measured the height at which the trees would need to maintained as described in [9]. We measured at the third tree from the southern end of the row. This tree would need to be maintained at a height of no more than 3.7 metres measured from the top of the boundary wall at this point (not the section of wall further to the north, which is slightly higher).

Jurisdiction

1. Before any such consent orders could be made the Court must be satisfied that all the jurisdictional tests regarding the trees are met.

1. We are satisfied that the trees are planted so as to form a hedge and that they rise to a height of at least 2.5 metres. According to s 14A(1), Part 2A of the Act applies to these trees.

1. According to s 14B the applicant can apply for an order regarding trees that are on adjoining land. Although there is a laneway between the applicant's property and the respondent's, as stated in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 ) trees across a public street have been held to be "on adjoining land".

1. The view of the harbour and headlands from the rear of the respondent's property is a small part of the overall outlook but is an iconic and important view. In fact, the permit for construction of the respondent's dwelling included conditions restricting its height for the purpose of maintaining this view from the applicant's dwelling.

1. The trees now obstruct at least 90% of this view. We regard this as a severe obstruction of the view. We do not see any "undesirability" in pruning the trees to reduce their height and maintain them at a height as described in [9]. According to s 14E(2) the Court can therefore make the consent orders agreed by the parties.

Orders

1. The orders of the Court, by consent, are:

(1)   The respondent is to engage and pay for a suitably qualified and experienced horticulturist or arborist to prune the Cypress trees to a height of no more than 3.3 metres above the top of the southern (lower) section of the rear boundary wall, measured from the top of the wall adjacent to the third tree from the south.

(2)   Thereafter, at the cost of the respondent, the trees are to be maintained at a height no greater than 3.7 metres above the top of the southern (lower) section of the rear boundary wall, measured from the top of the wall adjacent to the third tree from the south.

(3)   The initial pruning is to be carried out within 30 days of the date of these orders.

S Morris

Commissioner of the Court

D Galwey

Acting Commissioner of the Court

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Decision last updated: 18 July 2011