McDonald v Sheehan

[2022] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:

McDonald v Sheehan [2022] NSWLEC 1159

Hearing dates:

23 March 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – impacts of pruning – application refused

Legislation Cited:

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

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Texts Cited:

AS 4373–2007 Pruning of amenity trees, Standards Australia 2007

Category:

Principal judgment

Parties:

Kevin McDonald (First Applicant)
Jennifer McDonald (Second Applicant)
Vicki Sheehan (First Respondent)
Andrew Hill (Second Respondent)

Representation:

K McDonald (Self-represented) (First Applicant)
J McDonald (Self-represented) (Second Applicant)
V Sheehan (Self-represented and Agent) (First and Second Respondents)

File Number(s):

2021/328433

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. Kevin and Jennifer McDonald (‘the Applicants’) have 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 of four turpentine trees on neighbouring land belonging to Vicki Sheehan and Andrew Hill (‘the Respondents’). The McDonalds want the trees reduced in height to restore views they enjoyed when they came to their property 22 years ago.

Framework for this decision

2. 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 on adjoining land 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 Applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

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

• The obstruction is such that the Applicants’ 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.

3. If all these tests are met, the Court can make orders at s 14D(1) “to remedy, restrain or prevent the severe obstruction” of, in this case, a view from the Applicants’ dwelling.

4. The hearing took place onsite, with both Mr McDonald and Mrs McDonald self-represented, and Ms Sheehan representing herself and Mr Hill.

The Applicants made reasonable effort

5. The McDonalds have discussed the trees with Ms Sheehan and Mr Hill and sent written correspondence. They have reached some agreement to prune the trees, but the pruning proposed by the McDonalds would require consent from the Council of the City of Ryde (‘Council’). I find that their efforts to reach agreement with…