Pearce v Gleeson

[2022] NSWLEC 1543

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pearce v Gleeson [2022] NSWLEC 1543

Hearing dates:

28 March 2022

Date of orders:

5 October 2022

Decision date:

05 October 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 – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicants have lost access to views – application refused

Legislation Cited:

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

Cases Cited:

Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42

McDougall v Philip [2011] NSWLEC 1280

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Taylor v Dixon [2022] NSWLEC 1083

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

Category:

Principal judgment

Parties:

Dean Pearce (First Applicant)
Charlsey Pearce (Second Applicant)
William Gleeson (First Respondent)
Julie Gleeson (Second Respondent)

Representation:

Counsel:
D Pearce (Self-represented) (First Applicant)
C Pearce (Self-represented) (Second Applicant)
B Williamson (Agent) (Respondents)

File Number(s):

2021/349376

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: In these proceedings, neighbours in Newport dispute whether lilly pilly hedges obstruct a view to the extent that orders should be made to prune the trees. Dean and Charlsey Pearce (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 to mitigate a view obstruction caused by trees on adjoining land belonging to Julie and William Gleeson (the Respondents).

The hearing

2. The hearing in these proceedings took place onsite. The Pearces were self-represented; the Gleesons were represented by Ms Gleeson’s brother, Brian Williamson, as agent. The Court visited both properties to view the trees, views and view obstruction, privacy issues and the surrounding environment.

Part 2A of the Trees Act applies to the trees

3. Part 2A of the Trees Act provides a limited jurisdiction for those who find neighbouring trees obstruct their sunlight or views. Firstly, at s 14A:

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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

4. The Applicants engaged David Gowenlock, a consulting arborist of Seasoned Tree Consulting, to assess the trees and to prepare a report (Exhibit C). Mr Gowenlock described two hedges:

• Hedge 1 includes 5 lilly pillies (Syzygium australe), 4–6 metres tall, growing on the Gleesons’ property along the common boundary, partly between the parties’ respective dwellings.

• Hedge 2 includes 9 more lilly pillies, 2.5–4 metres tall, growing on the Gleesons’ property along the common boundary, continuing to the east toward the Gleesons’ rear boundary.

5. It is not disputed that the…