Shearer v Arian

[2019] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shearer v Arian [2019] NSWLEC 1383
Hearing dates:	15 August 2019
Date of orders:	15 August 2019
Decision date:	15 August 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – severity of obstruction – properties not adjoining
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Category:	Principal judgment
Parties:	David Julian Shearer (First Applicant) Margot Shearer (Second Applicant) Abdul Masid Arian (Respondent)
Representation:	D Shearer & M Shearer, litigants in person (Applicants) A Arian, litigant in person (Respondent)
File Number(s):	2019/63267
Publication restriction:	No

Judgment

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

The application

1. David and Margot Shearer (‘the applicants’) have applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for trees in a neighbouring hedge to be pruned and maintained so as to restore a view from their dwelling.

2. Abdul Arian (‘the respondent’) planted the trees more than ten years ago and does not want to prune them.

The trees

3. Mr Arian planted eight Leyland Cypress trees in a straight line near his rear boundary. They have grown to form a dense screen some 10 metres long, approximately 8.5 metres tall. Less than two months ago, after the Shearers made their application, Mr Arian removed foliage and branches of the tree at the hedge’s northern end, nearest the Shearers’ dwelling. The stem of that tree remains.

The view

4. The Shearers have lived at their Gladesville property since 1986. In 1992, they added a second-storey extension including a living room above their garage to take advantage of views to their northwest. The view from the window of this living room is the single element of the Shearers’ application. A 2008 photo of that view, included in their application, shows the young hedge trees planted by Mr Arian below a view of trees on the next property to Mr Arian’s south, and sky above.

5. A photo taken in 2018 shows that view largely obstructed by the dense screen created by the trees.

6. Observations at today’s onsite hearing showed that the view in the photos is a west-facing view when standing at the living room window. From within the room, where more time is likely to be spent, that view is not available. Rather, the principal view from within the room is directly out the window to the northwest. That view is partially obstructed by a single tree on a property adjoining the Shearers’ property, to their northwest. Between that tree and Mr Arian’s hedge, a view of the neighbourhood and sky remains.

Submissions

7. The Shearers submitted that the view obstruction speaks for itself. It can be seen that the hedge obstructs their view, although perhaps to a lesser extent now that one tree has been removed.

8. Mr Arian submitted that he removed one tree to benefit another neighbour. He does not think his hedge significantly affects the Shearers’ view, as other trees beyond his hedge would prevent further views.

Findings

9. The view obstruction caused by the hedge only occurs when one stands at or near the window of the Shearers’ living room. From within the room, the trees are not visible. I accept that the Shearers find the hedge an annoyance, but I am not satisfied that their enjoyment of their property is significantly affected, nor that the view obstruction is severe. In Van Hoorn v Sullivan & anor [2013] NSWLEC 1111, Commissioner Fakes explained at [34]:

“The use of the word 'severely' sets a high bar in terms of the extent of the obstruction caused by any of the trees to which Part 2A applies. The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions...hard to endure... Therefore, the obstruction must be considerable.”

Each situation has its own particular characteristics and must be determined on its merits. In this case, considering the principal view and overall view from this window, I cannot be satisfied that the hedge causes a severe obstruction of views for the Shearers. Therefore, according to s 14E(2) of the Trees Act, I cannot make any orders.

Properties are not adjoining

10. The Shearers’ rear boundary is shared with neighbours to their northwest, with Mr Arian’s property sharing a side boundary with those neighbours. The Shearers’ diagram in their application showed their property and Mr Arian’s touching at the Shearers’ westernmost corner. The Court has found, for instance in Cavalier v Young [2011] NSWLEC 1080, that two properties sharing a corner post were adjoining for the purposes of the Trees Act.

11. After returning to the Court, I observed on the SIX Maps website ( that the properties are not adjoining, as shown in the following snip from SIX Maps (A = Applicants; R = Respondent):

12. Had I found the view obstruction severe, I would allow the parties to make further submissions to address this point. Given my earlier findings, however, this is not necessary.

Orders

13. Based on the above, the orders of the Court are:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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