Langer v Slezak; Langer v Cohn
[2015] NSWLEC 1031
•26 February 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Langer v Slezak & anor; Langer v Cohn [2015] NSWLEC 1031 Hearing dates: 26 February 2015 Date of orders: 26 February 2015 Decision date: 26 February 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: Orders by consent: see paragraph 14.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; obstruction of views; orders by consent; tree removal and replanting. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122Category: Principal judgment Parties: 21025 of 2014
21026 of 2014
Sylvia Langer (Applicant)
Peter Slezak and Julianna Slezak (Respondents)
Sylvia Langer (Applicant)
Steven Cohn (Respondent)Representation: Counsel:
Solicitors:
Patrick O’Brien, Solicitor (Applicant, both matters)
Jacinta Reid, Barrister (Respondents in both matters)
Harris & Company (Applicant, both matters)
Baron & Associates (Respondents in both matters)
File Number(s): 21025 of 201421026 of 2014
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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When Ms Langer (“the applicant”) and her family moved into their Castlecrag home in 1974, they had largely uninterrupted views across properties to their north and northeast. Cypress trees on two adjoining properties have subsequently grown up into those views. Ms Langer has made two applications to the Land and Environment Court pursuant to section 14B of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) seeking orders for the trees to be reduced significantly in height.
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At the outset of the hearing the parties' representatives requested time to see if some agreement could be reached. Mr O'Brien, for the applicant, and Ms Reid, for the respondents in both matters, then proposed consent orders for the trees to be removed and replaced with new plantings.
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Before making any orders, even those by consent of the parties, the Court must be satisfied that the jurisdiction of the Trees Act is enlivened and that, considering a range of discretionary matters, the orders are appropriate. Therefore the parties took me to observe both hedges and then the views from the applicant’s dwelling, and the extent of any view obstruction.
Jurisdiction
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The trees, all Bhutan Cypress (Cupressus torulosa), are planted to form two hedges. Hedge 1, on the Slezaks’ property (21025 of 2014), comprises 11 trees planted in a straight line at regular, close spacings. Hedge 2, on the Cohn property (21026 of 2014), is made up of eight trees also planted in a straight line at regular, close spacings. The trees were clearly planted as hedges and continue to form two hedges. The trees are all 12—15 metres tall, except for trees T17—T19, farthest from Ms Langer's dwelling in Hedge 2, which have been maintained at a height of approximately 5 metres. There is no dispute that the trees satisfy the jurisdictional test at s 14A(1) of the Trees Act.
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Views to the north and northeast from the rear of Ms Langer’s dwelling encompass Middle Harbour, Sugarloaf Bay and Pickering Point. Views include the water with rising landforms behind, and the landscape before the water, with many native trees growing between dwellings.
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Considered together from the five viewing points in Ms Langer’s dwelling, trees in the two hedges cause varying degrees of obstruction to the views, from as little as approximately 20% (from the main bedroom upstairs) to more than 75% (from the dining room) of the available water views. Even from those rooms with the least view obstruction, the presence of the hedges has a major impact on the outlook due to their proximity to the dwelling and their central location in the available views. More distant native trees allow filtered views and form part of the landscape. Water views are highly valued and it is a major element of these views that is now blocked. On my observation the view obstruction is severe, satisfying the jurisdictional test at s 14E(2)(a)(ii) of the Trees Act.
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The three trees at the far end of Hedge 2 (trees 17—19) have been maintained at a shorter height than the others. They are more than 2.5 metres tall but their impact on the views is difficult to assess due to the taller trees in the hedge being closer to Ms Langer’s dwelling. Nevertheless they are part of Hedge 2 and, taking a purposive approach to the Trees Act, as the Court has done previously in Wisdom v Payn [2011] NSWLEC 1012 and also in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122, I find the jurisdiction of the Trees Act is enlivened for all trees within the hedge.
Discretionary matters
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To lop the trees to a height that would restore the applicant’s views would leave unattractive trees with little amenity and short life expectancies. Pruning is therefore not a suitable option.
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The trees are outgrowing the spaces in which they were planted. They are disrupting hard landscaping around the narrow garden beds where they grow.
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The trees are exotic species and not part of the native character of the neighbourhood.
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Mr Castor, providing arboricultural evidence for the respondents, identified the presence of Cypress Bark Weevil in one of the hedges.
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The trees contribute to privacy and amenity of the respondents in both matters, but this can be replaced through suitable replanting.
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Weighing the balance of the trees’ benefits against the view obstruction caused to the applicant, I accept that the final jurisdictional test, at s 14E(2)(b), is satisfied. I also accept that the orders proposed by the parties are appropriate to remedy the view obstruction.
Orders
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Therefore, by consent, the Court makes the following orders.
21025 of 2014 Orders
The application is upheld.
Within six months of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3 and member of the Tree Contractors Association of Australia) to remove the eleven trees in Hedge 1 referred to as T1—T11 (in the report of Catriona Mackenzie dated 2 February 2015) and grind their stumps to a minimum depth of 300 mm below soil level.
On reasonable notice the respondents are to provide any access required for the works in order (2) during reasonable hours of the day.
Within 60 days of the works in order (2) being completed, the respondents are to, at their cost, plant six trees of a Photinia glabra cultivar in 20-litre containers at one-metre spacings in the area where trees T1—T11 were removed.
The respondents are to, at their cost, take all necessary actions to maintain the replacement trees planted in order (4) at or below a height of 5 metres above ground level.
21026 of 2014 Orders
The application is upheld.
Within six months of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3 and member of the Tree Contractors Association of Australia) to remove the five trees in Hedge 2 referred to as T12—T16 (in the report of Peter Castor dated February 2015) and grind their stumps to a minimum depth of 300 mm below soil level.
On reasonable notice the respondent is to provide any access required for the works in order (2) during reasonable hours of the day.
Within 60 days of the works in order (2) being completed, the respondent is to, at his cost, plant six trees of a Photinia glabra cultivar in 20-litre containers at equidistant spacings in the area where trees T12—T16 were removed.
The respondent is to, at his cost, take all necessary actions to maintain the replacement trees planted in order (4) at or below a height of 5 metres above ground level.
The respondent is to, at his cost, maintain the three trees in Hedge 2 referred to as T17—T19 (in the report of Peter Castor dated February 2015) at or below a height of 5 metres above ground level.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 27 February 2015
Langer v Slezak; Langer v Cohn [2015] NSWLEC 1031
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