Ryan v Dawson

[2016] NSWLEC 1613

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ryan v Dawson & anor [2016] NSWLEC 1613
Hearing dates:	16 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; severity; does Part 2A apply to the nominated trees
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Ingram v Pettigrew [2016] NSWLEC 1002 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Reginald Ryan (Applicant) John and Karen Dawson (Respondents)
Representation:	Applicant: Mr Kim Ryan (Agent) Respondents: Ms Natasha Hammond (Barrister)     Solicitors: Respondents: Watson & Watson Solicitors
File Number(s):	306731 of 2016

Judgment

1. COMMISSIONER:   Since 1962 the applicant has owned a property in Bronte, which in part, overlooks a portion of Bronte Beach to the east. The beach views are highly valued.

2. The applicant contends that trees growing on the adjoining property to the east, severely obstruct the views of the beach. As a consequence, he has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking either regular pruning of the trees or their removal in order to restore the views that were available to him before the trees were planted in 2005.

3. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.

4. The first of these is whether the trees the subject of the application, are trees to which Part 2A applies. Section 14A(1) requires there be groups of two or more trees planted so as to form a hedge and which rise to a height of 2.5m.

5. The application claim form indicates three trees, all specimens of Aloe barberae (Tree Aloe).

6. During the on-site hearing, it became clear that there are five Aloes planted in the respondents’ front garden. The lowest tree is not part of the application. The remaining trees are planted over two levels of retained garden beds – two at each level. The trees were measured to be a height of about 4.9m. The applicant’s son who is acting as his father’s agent stated that the fourth tree could not be seen from the relevant viewing positions as it is effectively behind one of the three nominated trees.

7. Ms Hammond for the respondents contends that the trees were not planted so as to form a hedge but were selected for their architectural form and to soften the appearance of the respondents’ dwelling. She cites Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the “the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge”. Ms Hammond argues that the type and arrangement of the trees,…