Popovac v Kennedy

[2021] NSWLEC 1635

Land and Environment Court

New South Wales

Medium Neutral Citation:

Popovac v Kennedy [2021] NSWLEC 1635

Hearing dates:

18 October 2021

Date of orders:

18 October 2021

Decision date:

18 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned except for A and 1.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether all trees are planted so as to form hedges – whether the view obstruction is severe – application refused

Legislation Cited:

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

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

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

Category:

Principal judgment

Parties:

Simo Popovac (Applicant)
Dominic Kennedy (First Respondent)
Jessica Kennedy (Second Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
L Sims (Respondents)

Solicitors:
McCabes (Applicant)
Bick & Steele (Respondents)

File Number(s):

2021/199974

Publication restriction:

No

Judgment

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

Background to the application

1. Simo Popovac (‘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 neighbouring trees to be pruned and maintained so as to restore views from his North Curl Curl property, which he has owned since 2007. The trees subject to the application are on the adjoining property belonging to Dominic and Jessica Kennedy (‘the respondents’).

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 adjoining 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 owners (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 14F must be considered.

3. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent, in this case, a severe obstruction of a view from the applicant’s dwelling.

4. The hearing took place via MS Teams. Two reports from arborists assisted the Court: one by Melanie Howden of Footprint Green, for the applicant, and the other by Catriona Mackenzie of Urban Forestry Australia, for the respondents. Neither expert was required at the hearing. Relying on the available evidence and submissions made during the…