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 Applicant. The Applicant submitted that the magnolia forms an L-shaped hedge with the camellias. She submitted that it might be a different type of tree, planted at a different time to the camellias, but that does not prevent it forming a hedge with the camellias.

5. The Respondents argued that the magnolia was planted at a different time to the camellias and was not part of the same landscape plan. Whereas the camellias are evergreen, and of a growth habit suited to hedging, the magnolia is deciduous, larger and of a growth habit not suited to hedging.

6. Mr Harwood described the tree as Magnolia liliiflora, 5.5 metres tall. It is healthy and structurally sound.

7. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ contemplated the intent of s 14A of the Trees Act. He found that Pt 2A of the Trees Act applies only to trees that are planted with the intention of forming a hedge at the time of planting, and that still form a hedge in the present. Ms Gough has provided no evidence to demonstrate such an intention with regard to the magnolia. The contrasting forms of the magnolia and the camellias, and the nature of the existing landscape – these factors suggest to my horticultural eye that the camellias were planted to form a hedge, but the magnolia was not.

8. In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), Moore SC (as his Honour then was) and Hewett AC found at [45]:

“… We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

9. There is nothing about the location and form of the magnolia that suggests it forms a hedge with the camellias. Even if its foliage overlaps that of other trees, I do not think that it “would be perceived to be a hedge” by a visitor to the garden. I find that the magnolia is not planted so as to form a hedge.

Does the tree severely obstruct a view?

10. Ms Gough took the Court to various parts of her dwelling to point out the view and its obstruction. I accept that the magnolia obstructs her water view to some extent. However, the intent of the Trees Act is to provide an avenue for restoring a view that an applicant has lost: see Recommendation 9 of the Department of Justice and Attorney General’s ‘Review of the Trees (Disputes Between Neighbours) Act 2006’ (November 2009). Ms Gough submitted that she had a more extensive water view when she came here in 2016, but provided no photographic evidence of this. On the other hand, the Respondents provided real estate photographs from the 2016 promotion of the Applicant’s property. The magnolia can be seen clearly in those photographs, not significantly shorter than its current height, and likely to be having a similar impact then on water views as it does now.

11. The tree makes a positive contribution to the landscape. Its form and health would be adversely impacted by severe reduction pruning.

12. For the above reasons, had I found the magnolia was planted to form a hedge with the camellias, no orders would be made for its removal or reduction in height. The Applicant’s interest in removing the obstruction do not outweigh the tree’s benefits (s 14E(2)(b) of the Trees Act).

Orders

13. As a result of the foregoing, the Court orders

1. The application is refused.

2. The exhibits are returned, other than A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 February 2023