Probert v Christie

[2021] NSWLEC 1529

Land and Environment Court

New South Wales

Medium Neutral Citation:

Probert v Christie [2021] NSWLEC 1529

Hearing dates:

10 June 2021

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – does covenant over height of trees apply – were the trees planted – do the trees form a hedge – are views severely obstructed – balancing of interests

Legislation Cited:

Interpretation Act 1987

Trees (Disputes Between Neighbours) Act 2006

ss14A, 14B, 14E, 14F

Uniform Civil Procedures Rules 2005 Schedule 7

Cases Cited:

Fyday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Haindl v Daisch [2011] NSWLEC 1145

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

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

Texts Cited:

AS4373:2007 Pruning of amenity trees

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

Category:

Principal judgment

Parties:

Keith Probert (First Applicant)
Susan Probert (Second Applicant)
Amiel Christie (Respondent)

Representation:

K Probert (Litigant in person) (First Applicant)
S Probert (Litigant in Person) (Second Applicant)
A Christie (Litigant in person) (Respondent)

File Number(s):

2021/63266

Publication restriction:

No

Judgment

This decision was reserved.

Background

1. Mr Keith Probert, and Mrs Susan Probert, the applicants, recently purchased a property located high on a ridge overlooking Palm Beach, and took possession in July 2020. Extensive views of both water and landscape are available from this position. The property shares a rear boundary with that of the respondent, Dr Amiel Christie.

2. Dr Christie has owned his property since 1993, and it was leased until 2018. It is located within an area E4 Environmental living zone of Northern Beaches Council (Council). A general Tree Preservation applies for E4, and Council are the Statutory Authority.

3. Soon after taking possession, Mr Probert spoke on site to Dr Christie’s son, Mr Andrew Christie, who acts in this matter as his aged father’s Agent. In order to exercise his right to views, in accordance with a restrictive covenant on the title of the respondent’s property, Mr Probert requested that a group of trees near the rear boundary, be “lopped”, to significantly reduce their height.

4. Mr Christie resisted the lopping requested by Mr Probert, but upon receipt of a letter of demand from Mr Probert’s legal representative, Mr Christie, nonetheless, lodged an application with Council for pruning of the trees. Council granted permission for pruning of up to 15% of the canopy, on condition that the work accorded with the Australian Pruning Standard, AS4373:2007 (the Standard).

5. Mr Christie had this pruning work completed, but the pruning did not involve reduction of the height of the canopy. Mr Christie asserted that the lopping required by Mr Probert required specifications which were mutually exclusive to the requirements of the Standard, because, as noted on page one of his Respondent Response, dated 27…