Sinclair v Savdie

[2022] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sinclair v Savdie [2022] NSWLEC 1040

Hearing dates:

28 October 2021

Date of orders:

2 February 2022

Decision date:

02 February 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See Orders below at [55].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges; is the obstruction of views severe; hedge pruned just before the hearing; whether the obstruction must be present on the day of the hearing; no entitlement to views that were unavailable to applicants upon occupation of dwelling; balancing of interests between views and privacy

Legislation Cited:

Interpretation Act 1987
Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14C, 14E, 14F, Pt 2A
Uniform Civil Procedure Rules 2005, Div 2, Pt 31, Sch 7

Cases Cited:

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

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Steber v Job [2019] NSWLEC 1308

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

Texts Cited:

NSW Government, Justice & Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), November 2009

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Paul Sinclair (First Applicant)
Sandra Sinclair (Second Applicant)
Sharon Savdie (Respondent)

Representation:

Solicitors:
P O’Brien (Applicants)
A Boscovitz (Respondent)

File Number(s):

2021/224544

Publication restriction:

No

Judgment

1. COMMISSIONER: Paul and Sandra Sinclair, the applicants, occupied their Vaucluse property in late 2018, at which point a row of eight Lilly Pilly’s (Syzygium sp) (the trees) planted in their adjacent neighbour’s property about twenty years ago, had attained a height of about six metres. The respondent, Sharon Savdie, has lived at her property since 2006.

2. As the trees grew to a height of about 7.5 - 8 metres, increasingly obstructing their valued water views, the applicants wrote to the respondent in May 2021, requesting that she prune the height of the hedge so as to reduce the obstruction and restore their previously available views.

3. Regardless of repeated correspondence from the applicants and attempts by Mr Sinclair to mediate the situation through a Community Justice Centre, the respondent refused to undertake, or apparently, even contemplate pruning to reinstate her neighbours’ view.

4. As a result, Mr and Mrs Sinclair submitted an application, pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking orders to remedy the severe obstruction of views from their dwelling, as a result of their neighbour’s trees.

5. Eight days prior to the hearing, Ms Savdie had the trees pruned to a height of about 6.25 metres above ‘natural ground level’.

Proposed orders

6. The applicants seek the following orders:

“1. An order that within 30 days of the date these orders are made, the respondent prunes each of the eight trees in the hedge T1-T8 to a height of no more than 5.5 metres above natural ground level.

2. An order that the respondent maintain the…