McLaren v Lewis

[2011] NSWLEC 1170

Land and Environment Court

New South Wales

Medium Neutral Citation:	McLaren v Lewis [2011] NSWLEC 1170
Hearing dates:	13 April 2011
Decision date:	28 April 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; nature of a hedge; severe obstruction caused by trees not subject to the Act
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Wisdom v Payn [2011] NSWLEC 1012 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Mrs S McLaren (Applicant) Mr G Lewis (Respondent)
Representation:	Mrs S McLaren (Applicant in person) Mr G Lewis (Respondent in person)
File Number(s):	20007 of 2011

Judgment

1. COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Seaview Street Bonny Hills against the owner of trees growing in an adjoining property in Third Avenue Bonny Hills.

1. The applicant is seeking orders for the pruning of 12 trees to approximately 3.5 m above ground level (on the respondent's property) in order to regain views of the nearby coastline from Rainbow Beach to Lighthouse Beach near Port Macquarie. The applicant contends that she had panoramic views when she purchased the property in 1999.

Relevant background

1. All trees are located in the rear garden of the respondent's property. The applicant's property adjoins to the south but in a more elevated position.

1. It appears that the respondent's mother planted the trees in order to provide privacy to bedrooms on the upper storey of the dwelling. Correspondence between the applicant and the respondent's mother, his stepfather and later himself were tendered by the respondent.

1. Some of this correspondence goes back to 2000. A letter dated 22 April 2002 indicates that the applicant sought the pruning of the trees back then on the basis of obstruction of sunlight, loss of views, loss of property value, overhanging of her property and being a hazard. The letter states that back in February 2000 the applicant had been willing to share the cost of the pruning or, "for the sake of our personal safety and property" the full cost.

1. In the applicant states that some of the trees were pruned in 2007. A photograph on p6 of exhibit B, taken on 10 January 2007 from the balcony in front of V4 shows lopping of some trees (notably trees 7 and 11) as well as the view, the relationship of the respondent's roofline to the view, as well as other rooflines and vegetation between the respondent's property and the water views.

1. In a letter to the respondent's stepfather dated 11 June 2010 the applicant advised that with the passing of the amendment to the Tree Act... It is now law, that you cannot grow high shrubs/trees'' [sic] /hedges that obstruct sunlight or views. Two or more trees which rise above the height of at least 2.5 metres above ground level." [sic]...... Would you please consider again, my request to trim…