Lau v Gould

[2021] NSWLEC 1566

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lau v Gould [2021] NSWLEC 1566

Hearing dates:

23 September 2021

Date of orders:

23 September 2021

Decision date:

23 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – lilly pilly – obstruction of a view – whether the obstruction is severe – other issues outside Pt 2A jurisdiction – application refused

Legislation Cited:

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

Category:

Principal judgment

Parties:

Man Yi Lau (Applicant)
Jody Gould (Respondent)

Representation:

M Y Lau (Litigant in Person) (Applicant)
J Gould (Litigant in Person) (Respondent)

File Number(s):

2021/182966

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: Man Yi Lau (‘the applicant’) and Jody Gould (‘the respondent’) are neighbours in a Cheltenham subdivision of several properties that share a common driveway. Ms Lau has owned her property since 2009. Ms Gould, who has lived here for approximately 12 years, became the sole owner of her property in 2019. On Ms Gould’s property are several lilly pilly hedges. One of those hedges (‘the hedge’) grows in a garden bed on her property along the common boundary shared with Ms Lau. It reaches the front of her property at the common driveway.

2. Ms Lau 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 the hedge to be maintained to Ms Gould’s property boundary, so that it does not grow into the common driveway area, and for the hedge’s height to be reduced to, and maintained at, the height of the fence on their common boundary.

Framework for this decision

3. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the trees’ owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

4. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent (in this matter) a severe obstruction of a view from the applicant’s dwelling.

The hearing

5. The hearing took place online via audio-visual means. I informed the parties that the Court would arrange a later onsite inspection if, at the end of the hearing, I thought that would assist this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. I bring my own arboricultural expertise and experience to making this decision.

The applicant made reasonable effort to reach agreement

6. Ms Lau explained that the previous owner of Ms Gould’s property maintained the hedge at a given height and at the property boundary. Since the hedge has grown taller, and beyond the property boundary, she asked Ms Gould to prune it as it was before. She tried, unsuccessfully, to arrange mediation with Ms Gould. I am satisfied that Ms Lau has made reasonable effort to reach agreement.

Do the trees form a hedge that severely obstructs the applicant’s view?

7. Photographs show the lilly pillies form a hedge along the common boundary. Ms Gould measured the height of the adjacent boundary fence at 1.74 metres. One of Ms Lau’s photographs, taken in April 2021, shows the top of the hedge to be approximately 70–80 cm above the fence, or around 2.5 metres in height. The hedge then grew taller, prompting Ms Lau to make her application, so I am satisfied that the hedge is more than 2.5 metres in height.

8. Photographs do not show a severe obstruction of a view. Most photographs filed by Ms Lau were taken in April or May of 2021, at which time she was, according to her own submissions, satisfied with the height of the hedge. When arranging the online hearing, the Court made orders on 10 September including order (4): “The parties are to file and serve photographs showing the situation, in particular the view from the applicant’s dwelling and obstruction of that view, by 17 September 2021.” Ms Lau has not filed any photographs taken more recently than April or May 2021. Therefore there is no evidence adduced that shows a severe obstruction of a view from her dwelling.

9. Ms Gould explained that she has maintained her hedges regularly during the period she has owned her property, since December 2019. She provided a letter from a landscape maintenance business verifying this. If Ms Lau was satisfied with the hedge’s height in April 2021, that supports Ms Gould’s statement. Ms Gould explained that COVID restrictions have prevented regular maintenance of her hedges since May, when they were last pruned, but maintenance should resume shortly. She intends to maintain the hedge at the same size as shown in April 2021 photographs, but is willing to negotiate with Ms Lau, perhaps for further pruning to fence height. Ms Gould does not intend to maintain the face of the hedge on Ms Lau’s side.

10. I cannot be satisfied that the hedge is causing is a severe obstruction of a view from Ms Lau’s dwelling, so I cannot make orders. Even if the obstruction has become a nuisance to Ms Lau, it seems likely that this is a temporary situation resulting from COVID restrictions. I also find that there is no requirement for Ms Gould to maintain the face of the hedge on Ms Lau’s side, even if a previous owner of her property did so. The hedge acts as a dividing fence on this part of their common boundary, and was apparently in existence when each party came to their property.

11. Regarding the hedge obstructing traffic on the common boundary, this does not fall within the jurisdiction of Pt 2A of the Trees Act, so the Court cannot make orders to resolve this issue.

Orders

12. As a result of the foregoing, the Court orders:

1. The application is refused.

2. The exhibits are returned, except for Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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