Meagher v Carroll

Case •

[2016] NSWLEC 1644

•

22 December 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Meagher v Carroll & anor [2016] NSWLEC 1644
Hearing dates:22 December 2016
Date of orders: 22 December 2016
Decision date: 22 December 2016
Jurisdiction:Class 2
Before: Galwey AC
Decision:

The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; view obstruction not severe at the time of the hearing; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
Johnson v Angus [2012] NSWLEC 192
Tooth v McCombie [2011] NSWLEC 1004
Category:Principal judgment
Parties: John Meagher (Applicant)
Greg Carroll (First Respondent)
Julie Carroll (Second Respondent)
Representation: John Meagher, litigant in person (Applicant)
Julie Carroll, litigant in person (Respondents)
File Number(s):233648 of 2016

Judgment

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

Background

  1. Mr Meagher (‘the applicant’) has lived at his Church Point dwelling for around three years. He has pleasant views of Pittwater to the east. Downslope, along the common boundary, his neighbours the Carrolls (‘the respondents’) have trees along their boundary that provide privacy. The Carrolls have lived here for around 25 years.

  2. Mr Meagher has applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the trees to be removed and for screening plants to be planted on his property so that he can maintain them. Failing that, he wants the trees pruned and maintained at a height that would allow him his views while maintaining the Carrolls’ privacy.

  3. The trees are eight cypress trees and one date palm. The cypress trees have been pruned in the past. The palm has had its lower fronds removed. Ms Carroll says the palm was there when they moved in to their property. She planted the cypress trees about 22 years ago.

Part 2A of the Trees Act does not apply to the palm

  1. Part 2A of the Trees Act only applies to certain trees:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

  1. The undisputed evidence of Ms Carroll is that the palm was present when the Carrolls purchased their property. It is a single tree. Nothing would suggest it was planted to form a hedge. Preston CJ established in Johnson v Angus [2012] NSWLEC 192 that s 14A(1)(a) requires that the trees be planted rather than self-sown, and that the planter must have intended for them to form a hedge. Therefore Part 2A of the Trees Act does not apply to the palm. The cypress trees, on the other hand, were planted to form a hedge.

View obstruction

  1. According to s 14E(2)(a)(ii) of the Trees Act, the Court must not make an order under Part 2A unless it is satisfied that the trees concerned are severely obstructing a view from the applicant’s dwelling.

The view obstruction is not severe at the time of the hearing

  1. Ms Carroll says she gets contractors to prune the hedge regularly. It was pruned about one month ago, after the application was made. Mr Meagher explained how tall the trees were before they were pruned, and provided photographs to demonstrate the extent to which they obstructed the view. In Tooth v McCombie [2011] NSWLEC 1004 Fakes C stated at (14):

The word 'are' [in s 14E(2)(a)(ii)] implies that the trees must be severely obstructing a view at the time of the hearing.

  1. Mr Meagher’s dwelling has two levels, both of which have living areas and bedrooms with windows facing east, towards the water. I observed views today from both levels.

  2. From upstairs, the respondents’ roof can be seen above the trees. There is therefore very little view obstruction from here caused by the trees.

  3. From downstairs, I observed that the cypress trees obstruct less than 50% of possible water views, and less than 20% of the overall view. I observed that water views remain when looking to the south of the trees, and that several shrubs on Mr Meagher’s property contribute to the view obstruction. Considering these matters, I find the view obstruction caused by the cypress trees is not severe today.

  4. Mr Meagher is concerned that the trees will regrow into his views. This concern seems reasonable. Ms Carroll stated at the hearing that she understands the issue that concerns Mr Meagher, and she intends to have the trees pruned regularly.

  5. As explained in Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, the applicants may make a new application.

Orders

  1. Because I find that the trees are not causing a severe obstruction of the applicant’s view, the orders of the Court are:

  1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 29 December 2016

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Johnson v Angus [2012] NSWLEC 192
Tooth v McCombie [2011] NSWLEC 1004
Hinde v Anderson & anor [2009] NSWLEC 1148