Roennfeldt v Ahearne

[2011] NSWLEC 1116

Land and Environment Court

New South Wales

Medium Neutral Citation:	Roennfeldt v Ahearne [2011] NSWLEC 1116
Hearing dates:	19 May 2011
Decision date:	19 May 2011
Jurisdiction:	Class 2
Before:	Morris C Galwey AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS]; Hedge; views; no jurisdiction; trees pruned prior to hearing; no severe obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	P Roennfeldt (Applicant) J Roennfeldt (Applicant) P Ahearne (Respondent) J Ahearne (Respondent)
File Number(s):	20019 of 2011

Judgment

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

1. This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Mandolong Road, Mosman against the owners of an adjoining property.

1. The applicants contend that trees comprising a hedge on the respondents' property obstruct views from two windows: a slight obstruction from the master bedroom and a severe obstruction from the living room.

1. In their initial application, the applicants sought orders to reduce two trees at the northern end of the hedge (T1 & T2) to a height of approximately 1.0 metre. During the onsite view they modified the orders they seek to the reduction of the same two trees to the height of a nearby pergola, approximately 3.0 metres in height.

1. The respondents planted the trees to provide a visual screen between their dwelling and the adjacent school building and to provide privacy by preventing overlooking from classroom windows in the school building into their dwelling.

1. A larger hedge that previously grew in approximately the same location, providing screening and privacy, was removed by the respondents. The existing hedge was planted to replace that earlier hedge. The respondents wish to retain the trees at their current size.

1. The hearing began with a site view, where we assessed the views, and the impacts of the hedge on the views, from the applicants' property; and the hedge and any benefits it affords the respondents from their property.

Findings

1. The hedge comprises five Tuckeroo trees ( Cupaniopsis anacardioides ) planted in a row on the respondents' property along a section of their eastern boundary. The trees are approximately 4-5 metres tall. (T1 is 3.97 metres in height; T2 is 4.60 metres; and T3 is 4.55 metres.)

1. Since the application was made to the Court, the respondent has undertaken pruning of the trees, or at least of T1 and T2.

1. The applicant took us to the view from the main bedroom. Here it was evident that the trees did not obstruct any view, but provided screening to the large school building to the east of the respondents' property.

1. From the window in the living area (lounge, dining and kitchen) the applicant showed us the obstruction of the view caused by the trees. The view of importance to the applicants is a section of the harbour - what would seem to be Port Jackson. The water view comprises only a small part of the outlook from the window. The top of T1 obscured part of this water view and the side of T2 obscured part. Combined, the obstruction of the harbour viewable from the window, caused by the trees, appeared to be less than 50%.

Jurisdiction

1. Considering the findings in [7], we are satisfied that Part 2A of the Act applies to the trees according to s 14A (1).

1. For the Court to make any orders regarding the trees, we must be satisfied according to s 14D (1) that there is a severe obstruction of a view from the applicants' dwelling as a consequence of the respondents' trees.

1. While it may be that, at the time of applying to the Court, the trees caused a greater obstruction than they do now, and that the applicant may have considered that obstruction to be severe, we find that, now that the trees have been pruned, they do not cause a severe obstruction of the view. We therefore do not have jurisdiction to make any orders regarding the trees.

1. In accordance with s 14E(2)(a)(ii), we note that the word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.

1. Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D(2) for the making of orders.

1. Whilst there may have been jurisdiction at the time the application was made (that is, the trees may have severely obstructed a view from the applicants' dwelling) the site inspection at the hearing clearly shows there is no severe obstruction of a view caused by the hedge.

1. However, as discussed in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, the applicants may make a new application.

Orders

1. As a consequence of the foregoing, the orders of the Court are:

(1)   the application is dismissed.

Sue Morris

Commissioner of the Court

David Galwey

Acting Commissioner of the Court

Decision last updated: 20 May 2011