Langley v Whitton

[2013] NSWLEC 1036

Land and Environment Court

New South Wales

Medium Neutral Citation:	Langley v Whitton [2013] NSWLEC 1036
Hearing dates:	28 February 2013
Decision date:	28 February 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; whether trees form a hedge, obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tooth v McCombie [2011] NSWLEC 1004
Texts Cited:	Macquarie Dictionary Oxford Dictionary
Category:	Principal judgment
Parties:	David Langley (First applicant) Susan Langley (Second applicant) Lindsay Whitton (First respondent) Sharyn Whitton (Second respondent)
Representation:	David Langley (Applicants) (Litigant in person) Lindsay Whitton and Sharyn Whitton (Respondents) (Litigants in person)
File Number(s):	21121 of 2012

Judgment

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

Introduction

1. The Langleys have lived at their Newport property since 1979. Around 1995 their neighbours, the Whittons, planted some palms near the common boundary and elsewhere on their property. The Langleys say those palms now obstruct their previously clear views of Pittwater and surrounds. They have applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for several palms to be removed.

The framework of the Act

1. Before the Court can make any orders, there are several jurisdictional tests that must be answered. Firstly, the trees must be planted so as to form a hedge (s 14A(1)(a)). Secondly, they must be more than 2.5 metres tall (s 14A(1)(b)). The trees must severely obstruct the applicants' view from their dwelling (s 14E(2)(a)(ii)); and the severity of the obstruction must outweigh any reason not to interfere with the trees (s 14E(2)(b)). If all these key jurisdictional tests are satisfied, the Court can make such orders as it sees fit to remedy, restrain or prevent the view obstruction after considering the matters set out in s 14F.

The situation

1. The palms and views were observed at the onsite hearing. Five palms grow in a raised garden area above the respondents' pool, near the common boundary. Three single-stemmed palms grow in a line close to the boundary; two multi-stemmed palms are further from the boundary. They are 6 to 7 metres tall. Their crowns partially overlap. They have been pruned recently.

1. Further to the south in a lower garden area, and separate from the previously described trees, are another three or four palms at irregular intervals. Their crowns are separated spatially, although they are close to, and overlap with, two other palms on a neighbouring property.

1. At the applicants' dwelling, the views are from: the upper deck (View 1), the lower deck (View 2) and the lounge (View 3). The nearest trees are approximately 20 metres from View 1 and 5-10 metres from View 2.

Applicants' submissions

1. The Langleys submit that the trees were planted, that they form a hedge, that they are more than 2.5 metres tall and that they severely obstruct a view. On this basis they argue that the…