Ness v Morris and anor

[2014] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ness v Morris & anor [2014] NSWLEC 1063
Hearing dates:	31 March 2014
Decision date:	11 April 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	The application is dismissed
Catchwords:	TREES [NEIGHBOURS] Injury - oleanders and potential poisoning; Hedges - obstruction of views;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Environmental Planning and Assessment Act 1979
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Ms K Ness (Applicant) Dr M Morris (First Respondent) Ms S Morris (Second Respondent)
Representation:	Applicant: Ms A Pearman (Barrister) Respondent: Mr A Sattler (Solicitor) Respondents: Sattler & Associates Pty Limited
File Number(s):	20989 of 2013

Judgment

1. COMMISSIONER: This is an application made under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in North Narrabeen against the owners of trees growing on an adjoining property.

1. The applicant purchased her property in late 2010. She contends that at that time there were clear views to the south, between neighbouring dwellings, of the surf break at North Narrabeen beach as well as the ocean between North Narrabeen, Long Reef Headland and Collaroy and including the inlet to Narrabeen Lakes from the first floor deck and living areas of her dwelling. While there were well-established plants on the respondents' property, she states that the only significant obstruction of any part of that view was a Banksia growing on the nearby council reserve. Although that Banksia has since died, she maintains that a number of hedges on the respondents' property have grown to the point where they severely obstruct the view of the surf at the North Narrabeen National Surfing Reserve.

1. Amongst the range of species growing along the common boundary are a number of Oleanders (Nerium oleander). As the applicant has two small children, she is concerned that given the toxic properties of oleanders, leaves that fall from them onto their property may be ingested by her children and result in injury through poisoning.

1. The applicant is seeking orders under s 14D Part 2A of the Act for the pruning of several trees and hedges, and under s 9 Part 2 for the removal of two oleanders. Proposed amended orders for pruning heights were filed. These alternative orders are based on arborists' reports commissioned by both parties.

The Part 2 application

1. The application originally contained a claim that in strong winds, branches from a row of Escallonia planted along the common boundary and adjoining the applicant's deck, damaged a section of timber lattice on the deck. However, that element of the claim is no longer pressed and the Part…