Lea v Orchard

[2015] NSWLEC 1479

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lea & anor v Orchard & anor [2015] NSWLEC 1479
Hearing dates:	23 November 2015
Date of orders:	23 November 2015
Decision date:	23 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld; trees to be removed
Catchwords:	TREES [NEIGHBOURS]: Part 2A - Obstruction of views; consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Mr J A Lea & Ms E A Lea (Applicants) Mr I R Orchard and Ms J S Orchard (Respondents)
Representation:	Applicants: Mr J Westlake (Agent) Respondents: Mr I Orchard (Litigant in Person)
File Number(s):	20623 of 2015

Judgment

1. COMMISSIONER: The applicants have owned their unit in Fairlight since 1995. In that time, a row of palm trees planted on the adjoining property to the south has grown to a point where they severely obstruct views to the south of Middle Harbour and Dobroyd Head.

2. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

3. The parties have discussed the issues and seek the making of Consent Orders for the removal of three of the six trees in question.

4. Before the Court can agree to the orders proposed by the parties, the applicable jurisdictional tests must be satisfied.

5. Part 2A applies only to two or more trees which are planted so as to form a hedge and which rise to a height of at least 2.5m above ground level. The trees in question are a row of six palms of two alternating species – Livistona australis (Cabbage Tree Palm) and Howea forsteriana (Kentia Palm). The trees were planted in about 1995 at the completion of the renovation of the respondents’ property. They are growing along the respondents’ northern boundary in a bed adjoining the dividing fence between the parties’ properties.

6. I am satisfied that the linear arrangement, spacing and form of the plants at the time of planting, meet the jurisdictional test in s 14A(1) and these are trees to which the Part applies.

7. The nominated viewing points are from the south-facing balcony associated with the living/dining room of the applicants’ unit, the south facing window of the dining/living room and the south facing window of the kitchen. The obstructed views to the south and south west are of 40 Baskets Beach, Middle Harbour and Dobroyd Head.

8. With the benefit of the site inspection and a recent photograph taken before some pruning of several of the palms, I am satisfied that the crowns of the palms severely obstruct the views of water and the land/water interface which were available when the applicants purchased their property. The parties have agreed that in order to restore some of the views but retain other palms that while obstructing part of the views are important for the respondents’ privacy, only three of the palms should be removed.

9. As a consequence, I am satisfied that the jurisdictional tests in s 14E(2) are met and the Court’s power to make the orders the parties seek is engaged.

10. Therefore, by consent, the Court orders:

1. The application is upheld.

2. The trees to be removed pursuant to these orders, as numbered and shown on the diagram attached to the Tree Dispute Application are: T3 (Kentia Palm), T4 (Cabbage Tree Palm), and T5 (Kentia Palm).

3. Within two months of the date of these orders, the applicants and respondents are to each obtain, and provide to the other party, a quotation from a suitable qualified arborist (minimum AQF Level 3 and member of the Tree Contractors Association of Australia) to remove the trees to ground level.

4. Within four months of the date of these orders, the respondents will engage one of the said arborists to perform the work in order 3 and will give notice to the applicants in writing when the work has been satisfactorily completed.

5. Within 14 days of the receipt by the applicants of the respondents’ notice, the applicants will pay to the respondents one half of the lesser of the two amounts quoted pursuant to order 3.

6. Any trees planted by the respondents to replace the three removed trees are to be:

1. Of a species other than palms; and

2. Capable of being maintained at a maximum height of 4 metres above ground level.

7. The respondents will, at their own expense, take all necessary actions to maintain any trees planted to replace the three removed trees at or below the height of 4 metres above ground level.

_______________________

Judy Fakes

Commissioner of the Court

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