Koundouris v Kresner

[2022] NSWLEC 1168

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Koundouris v Kresner [2022] NSWLEC 1168

Hearing dates:

21 October 2021 and1 November 2021

Date of orders:

31 March 2022

Decision date:

31 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicant has lost access to views – privacy and other benefits of the trees – application refused

Legislation Cited:

Interpretation Act 1987, s 34

Trees (Disputes Between Neighbours) Act 2006, ss 3, 4, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

McDougall v Philip [2011] NSWLEC 1280

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

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:

Aristidis Eric Koundouris (First Applicant)
Sodnoc Pty Ltd (Second Applicant)
Ilana Michelle Kresner (Respondent)

Representation:

Counsel:
M Staunton with T Poisel (Applicants)
N Eastman (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicants)
Thomson Geer Lawyers (Respondent)

File Number(s):

2021/143985

Publication restriction:

No

Judgment

Background to the application

1. Aristidis Koundouris 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 hedges on neighbouring land to be pruned and maintained for access to views from his property, which is owned by Mr Koundouris and his company Sodnoc Pty Ltd (together, ‘the Applicant’).

2. The hedges are on the adjoining property belonging to Ms Ilana Kresner (‘the Respondent’), who says the application should be dismissed.

3. Many of the relevant issues are not in dispute: that the Respondent has hedges that, to some extent, obstruct valued views from the Applicant’s property; and that the hedges provide some privacy screening for the Respondents.

4. Ms Kresner and her family have lived at 2 St Mervyns Avenue, Point Piper, for some time and have an established garden. Her property is to the northwest of 1 St Mervyns Avenue.

5. The Applicant bought 1 St Mervyns Avenue in 2017, at which time there stood on that property a two-storey building containing two apartments, one on the ground floor and another on the first floor with access to a roof terrace above. The Applicant subsequently demolished that building and commenced construction of a three-storey building with one dwelling on each of the three levels. At the time these proceedings commenced, the new building’s structure was substantially completed.

6. The Applicant claims that views of Sydney Harbour and the Harbour Bridge to the northwest were available from the property in 2017; specifically, from the first-floor apartment and the roof terrace. The Applicant claims that while views are still available from the new second-floor dwelling, they are…