Kennedy v Scaysbrook

[2018] NSWLEC 1456

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kennedy v Scaysbrook [2018] NSWLEC 1456
Hearing dates:	21 August 2018
Date of orders:	21 August 2018
Decision date:	21 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 30 days of the date of these orders, the respondents are to engage and pay for suitably experienced arborists or horticulturalists (minimum AQF level 3), with all appropriate insurances to prune each of the eight trees in the hedge to a height of no more than 3.2 metres above ground level, measured from the base of each tree. (2)   The respondents are to give the applicant 7 days’ notice of the works. (3)   The applicant is to allow all access necessary for the works during reasonable hours of the day. (4)   During September every year beginning 2019, the respondents are to engage and pay for suitably experienced arborists or horticulturalists (minimum AQF level 3), with all appropriate insurances to prune each of the eight trees in the hedge to a height of no more than 3.5 metres above ground level, measured from the base of each tree. (5)   Each year the respondents are to give the applicant 7 days’ notice of the works. (6)   Each year the applicant is to allow all access necessary for the works during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – privacy
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Brett Kennedy (Applicant) Jennifer Scaysbrook (First Respondent) Daniel Scaysbrook (Second Respondent)
Representation:	B Kennedy, litigant in person (Applicant) J and D Scaysbrook, litigants in person (Respondents)
File Number(s):	2018/128879
Publication restriction:	No

Judgment

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

Background

1. Several years ago Jennifer and Daniel Scaysbrook planted a row of seven lilly pillies and one macadamia tree along the rear boundary of their Wyoming property to provide privacy to their garden from the property upslope behind them and to visually screen the double-storey dwelling on that property. The trees have reached some 7 metres in height and fulfil their purpose.

2. Mr Kennedy has owned and lived at the uphill dwelling since 2000, at which time, he enjoyed views across the treed landscape to the distant hills. The trees now obstruct those views from his dwelling and he wants them pruned to a height of 1.2 m above the boundary fence, or replaced with trees that will grow only to that height. He has been unable to reach agreement with the Scaysbrooks so applied pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders from the Court.

3. The Scaysbrooks maintain that they need the full height of the trees to maintain privacy and screening of Mr Kennedy’s dwelling.

The Court can make orders

4. Having observed the views at the onsite hearing, I am satisfied that views from the living area of Mr Kennedy’s dwelling are severely obstructed by the trees. I am also satisfied that the trees are planted so as to form a hedge. Mr Kennedy has made reasonable effort to reach agreement with the Scaysbrooks. Therefore, all of the jurisdictional tests of the Trees Act are satisfied and the Court can make orders.

Views and privacy

5. I have considered the range of matters set out at s 14F of the Trees Act. I have balanced the respondents’ wishes for privacy with the views of the applicant. I have also considered the effects of pruning on the trees. There is no need to remove the trees. Having placed a height pole against the trees, I am satisfied that maintaining the trees at a height of 3.5 metres would maintain the Scaysbrooks’ privacy and would visually screen most of the neighbouring dwelling from their property. This height would restore the distant mountain views from Mr Kennedy’s property, although not the closer landscape views. The tree species will tolerate this level of pruning.

6. To achieve an ongoing pruning height of 3.5 metres, in the first instance the trees will be pruned to 3.2 metres above ground level, then pruned annually to 3.5 metres above ground level. Naturally, they will grow above this height in between annual pruning.

Orders

7. As a result of the foregoing, the orders of the Court are:

1. Within 30 days of the date of these orders, the respondents are to engage and pay for suitably experienced arborists or horticulturalists (minimum AQF level 3), with all appropriate insurances to prune each of the eight trees in the hedge to a height of no more than 3.2 metres above ground level, measured from the base of each tree.

2. The respondents are to give the applicant 7 days’ notice of the works.

3. The applicant is to allow all access necessary for the works during reasonable hours of the day.

4. During September every year beginning 2019, the respondents are to engage and pay for suitably experienced arborists or horticulturalists (minimum AQF level 3), with all appropriate insurances to prune each of the eight trees in the hedge to a height of no more than 3.5 metres above ground level, measured from the base of each tree.

5. Each year the respondents are to give the applicant 7 days’ notice of the works.

6. Each year the applicant is to allow all access necessary for the works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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