Milne v Herald

[2022] NSWLEC 1338

Land and Environment Court

New South Wales

Medium Neutral Citation:

Milne v Herald [2022] NSWLEC 1338

Hearing dates:

25 November 2021

Date of orders:

5 July 2022

Decision date:

05 July 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application to remove trees T1–T4 is refused.

(2) The application to prune trees T5–T8 is granted.

(3) Once every year during July, commencing July 2022, the Respondent, or a suitably experienced and insured contractor engaged and paid for by the Respondent, is to prune the four camellias (T5–T8 in the application) so that each tree is no more than 4 metres above ground level measured from the base of each tree.

(4) The Respondent is to give the Applicant 7 days’ notice of the works in Order (3).

(5) The Applicant is to allow any reasonable access necessary to complete the works in Order (3) during reasonable times of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the obstruction is severe – whether the applicant had access to views

Legislation Cited:

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

Cases Cited:

Alameddine v Jones [2013] NSWLEC 1021

Condon v Scott [2021] NSWLEC 1160

McDougall v Philip [2011] NSWLEC 1280

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Prudence Milne (Applicant)
Anna Herald (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
A Herald (Self-represented) (Respondent)

Solicitors:
Cornwalls (Applicant)

File Number(s):

2021/241368

Publication restriction:

No

Judgment

Background to the application

1. Prudence Milne’s Mosman property sits above Chowder Bay to the east. Her neighbour to the east, Anna Herald, has vegetation close to their common boundary. Ms Milne (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 Ms Herald (the Respondent) to prune a row of four trees that she says obstruct a view from her dwelling, and to remove a separate row of four trees she says obstruct sunlight to her dwelling.

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 land adjoining the Applicant’s 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 Applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

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

• The obstruction is such that the Applicant’s 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…