Mantell v Cairns

[2023] NSWLEC 1729

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mantell v Cairns [2023] NSWLEC 1729

Hearing dates:

24 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

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 – Daintree pines – obstruction of a view – whether the obstruction is severe – balancing of interests

Legislation Cited:

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

Category:

Principal judgment

Parties:

Barbara Mantell (Applicant)
Baydon Cairns (First Respondent)
Tracy Cairns (Second Respondent)

Representation:

Counsel
B Mantell (Self-represented) (Applicant)
B Cairns (Self-represented) (First Respondent)
T Cairns (Self-represented) (Second Respondent)

File Number(s):

2023/291791

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: Ms Mantell (the applicant) 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 pruning trees on the neighbouring Cumbalum property belonging to Tracy and Baydon Cairns (the respondents). The trees have grown to obstruct her view.

2. The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on her view.

Framework for this decision

3. The key jurisdictional tests in these proceedings are found at s 14E(2) of the Trees Act:

14E Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b) the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

Reasonable effort to reach agreement

4. On several occasions, the applicant has raised with the respondents the issue of their trees blocking her view. Most recently she wrote them a letter. The respondents have made it clear that they do not intend to prune the trees. I am satisfied that the applicant made a reasonable effort to reach agreement.

The hedge

5. The respondents had a hedge of lilly pillies along their northern boundary, being the common boundary shared with the applicant. After Ms Mantell complained to the Cairns that trees were obstructing her view, the Cairns removed most of the lilly pillies, leaving two at the hedge’s eastern end, and replaced the trees they removed with a row of seven Daintree pines (Gymnostoma australianum) (the pines). The pines form Hedge 1, while the remaining two lilly pillies form Hedge 2 (together, ‘the trees’). The trees are all planted so as to form a hedge and are more than 2.5 metres. It follows that Pt 2A of the Trees Act applies to the trees (s 14A(1) of the Trees Act).

Obstruction of a view

6. Ms Mantell’s dwelling is upslope from the Cairns’ property. Before the trees grew to their current height, she had views to the south over the Cairns’ roof to the distant landscape. At that time, the local subdivision was relatively new, with little vegetation.

7. The trees have grown taller than the boundary fence and the respondents’ roofline and into the view, so that the view is no longer available from Ms Mantell’s living room. Considering that view, and the extent to which it is now obstructed by the trees, I find the view obstruction is severe.

8. Before making any orders, I am required to consider the matters at s 14F of the Trees Act.

Consideration of other matters

9. The trees are next to the common boundary, several metres from Ms Mantell’s dwelling. While they obstruct the landscape view, they are not so tall that they obstruct the sky view, nor do they give one a sense of being walled in.

10. To restore the landscape view, the trees would need to be reduced in height by approximately 2 metres. Mr Cairns submitted that the pines are gymnosperms and that if they are pruned they may die. In fact, the pines are in the Casuarina family, so are angiosperms, although they have cone-like fruits and needle-like leaves. Pruning the growing tips might affect the pines’ form, but would be unlikely to affect their health or life expectancy. However, reducing the pines by 2 metres would severely impact the trees, leaving them unattractive and possibly leading to their decline.

11. The two lilly pillies are east of the pines and do not significantly obstruct the principal southern outlook from Ms Mantell’s living room.

12. Other features obstruct the view, from vegetation on Ms Mantell’s property to more distant trees that have grown since her house was built. From her living room window, she would no longer have an uninterrupted view to the coast, regardless of the respondents’ hedges.

13. When considered in the context of the entire dwelling, Ms Mantell’s living room window, a sliding door, provides a relatively limited viewing outlook.

14. The trees, and in particular the pines, contribute positively to the respondents’ landscape value and privacy.

15. Mr Cairns submitted that the pines’ ‘vulnerable’ conservation status in Queensland should be considered. This garden planting neither contributes to, nor detracts from, the species’ conservation in its natural ecosystem, so its conservation status in Queensland is not a factor in this decision.

16. Each case that comes before the Court has unique circumstances, often only understood fully with the benefit of the onsite view. Even when the view obstruction is found to be severe, the Court must be satisfied of the test at s 14E(2)(b) before making any orders:

…

(b) that the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

17. For the reasons above, when I weigh the applicant’s interests in restoring the view against the reasons to avoid interfering with the trees, I find that no orders should be made for pruning the trees, despite their contribution to the view obstruction.

Orders

18. The Court orders:

1. The application is refused.

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

D Galwey

Acting Commissioner of the Court

                                   **********

Decision last updated: 30 November 2023