Hickey v Inman

[2022] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hickey v Inman [2022] NSWLEC 1491

Hearing dates:

21 June 2022

Date of orders:

21 June 2022

Decision date:

21 June 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1)   The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction - do the two trees form a hedge for the purpose of the Act

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Pt 2A, ss 14A, 14B, 14C, 14E, 14F

Cases Cited:

Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

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

Wise v Hickey [2019] NSWLEC 1524

Wein v Reeves [2022] NSWLEC 1019

Texts Cited:

Northern Beaches Council Development Control Plan

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

Workcover NSW ‘Code of Practice for the Amenity Tree Industry’, 1998

Category:

Principal judgment

Parties:

Michael Hickey (Applicant)
Luke Inman (First Respondent)
Raechelle Inman (Second Respondent)

Representation:

M Hickey (Self-represented) (Applicant)
L Inman (Self-represented) (First Respondent)
R Inman (Self-represented) (Second Respondent)

File Number(s):

2022/81576

Publication restriction:

No

Judgment

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

1. COMMISSIONER: Michael Hickey, the applicant, has an outlook from his elevated property that includes views over and along Curl Curl beach to the north north-east, and across the Pacific Ocean to the north-east and east. The applicant’s property is located higher up a slope than that of the respondents, Luke and Raechelle Inman. The parties’ properties face different streets, but they share a common boundary which runs roughly north to south. The Inman’s rear boundary on the western side of their property is the northern end of Mr Hickey’s east side boundary. Other properties share Mr Hickey’s east side boundary further south of the Inman’s.

2. Past owners of the Inman’s property planted two Melaleuca trees (the trees) in their rear yard. One tree was planted near their rear boundary and the other near their southern side boundary.

3. Mr Hickey’s has occupied his dwelling since 1994. In his Tree Dispute Claim Details (Form G), he estimated that the trees were planted in the early 1990’s and that they were about 2 metres (m) tall upon his occupation in 1994.

4. Over the intervening years, the trees have grown such that they are now about 7 to 8 m tall, and their foliage has met and intermingled. This has resulted in a marked obstruction of Mr Hickey’s prized views and in early January 2022 he commenced communication with the respondents seeking a solution that would restore his views.

5. While the Inman’s initially appeared open to negotiating a settlement, they did not agree with Mr Hickey’s characterisation of the two trees as a hedge. Under the Northern Beaches Council (Council) Development Control Plan (DCP), the extent of pruning permissible without the…