Gough v Karlikoff

[2023] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gough v Karlikoff [2023] NSWLEC 1068

Hearing dates:

10 February 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – whether the trees are planted to form a hedge – view obstruction

Legislation Cited:

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

Cases Cited:

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

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)

Category:

Principal judgment

Parties:

Karyne Gough (Applicant)
Marta Eva Karlikoff (First Respondent)
David Karlikoff (Second Respondent)

Representation:

K Gough (Self-represented) (Applicant)
M Karlikoff (Self-represented) (First Respondent)
D Karlikoff (Self-represented) (Second Respondent)

File Number(s):

2022/343707

Publication restriction:

No

Judgment

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

1. COMMISSIONER: On the narrow finger of land of Point Frederick, dwellings have varying degrees of access to water views. Karyne Gough (the Applicant) claims to have lost a water view she once enjoyed due to the growth of trees on neighbouring land belonging to Marta and David Karlikoff (the Respondents). Following recent mediation, the Respondents pruned a hedge of camellias. Ms Gough has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for a magnolia tree (the tree) to be removed or pruned to restore her view. She seeks no orders for the camellias. The hearing took place onsite this morning. I have read the material filed with the Court by the parties. The Respondents obtained a report from Tim Harwood, arborist, who attended the hearing to give evidence.

The Applicant made a reasonable effort

2. The Applicant has discussed her concerns with the Respondents. At mediation they were able to reach an agreement for pruning the camellias, but not the magnolia. I am satisfied that the effort made by the Applicant to reach an agreeable outcome with the Respondents has been reasonable (s 14E(1)(a) of the Trees Act).

Is the magnolia planted so as to form a hedge?

3. Section 14A(1), Pt 2A of the Trees Act applies only to certain trees:

14A Application of Part

(1) This Part applies only to groups of 2 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).

(2) …

4. It is not disputed that the Respondents’ camellias are planted so as to form a hedge. The camellias form a row generally parallel to the Respondents’ side boundary. The magnolia is close to the common boundary shared with the…