Watkins v Togias and Connelly

[2019] NSWLEC 1355

Land and Environment Court

New South Wales

Medium Neutral Citation:	Watkins v Togias and Connelly [2019] NSWLEC 1355
Hearing dates:	24 July 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –hedge – obstruction of views – hedge pruned prior to hearing – the Court cannot be satisfied that the view obstruction is severe
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Steber v Job [2019] NSWLEC 1308
Category:	Principal judgment
Parties:	David Watkins (First Applicant) Margaret Watkins (Second Applicant) Greg Togias (First Respondent) Deborah Connelly (Second Respondent)
Representation:	M Watkins, litigant in person (Applicants) G Togias, litigant in person (Respondents)
File Number(s):	2019/86551
Publication restriction:	No

Judgment

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

Background

1. David and Margaret Watkins (‘the applicants’) have applied to the Court pursuant to both s 14B (Part 2A) 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.

2. From their Longueville property the Watkinses have views over Tambourine Bay, part of Lane Cove River.

3. Their neighbours, Greg Togias and Deborah Connelly (‘the respondents’) have a hedge of lilli pilli trees (’the trees’) along their common boundary. Since the Watkinses made their application to the Court, the trees have been pruned. Mr Togias said they have their trees pruned two or three times each year.

Do the trees cause a severe obstruction of a view?

4. Mrs Watkins explained that the trees were at least half a metre taller at the time they applied to the Court, before they were pruned. At that time, she said, the trees obstructed a view of Tambourine Bay through their side windows next to their dining table and living area. She submitted that they like having the hedge at its current height as it provides some privacy between the properties while maintaining their views. The Watkinses’ dwelling has three storeys, the second level being the affected one. Views from their upper and lower floors are not part of the application.

5. Mr Togias made submissions about the impact of the Watkinses’ dwelling on his views, and about the damage their passionfruit vine might do to his lilli pillies, but these were not relevant to my decision within the jurisdiction of the Trees Act.

6. At the onsite hearing, I observed that the principal view from the Watkinses’ living area on their second floor was through the large windows at the back, facing northwest. The water view across the side boundary was available across the top of the lilli pillies. I found recently in Steber v Job [2019] NSWLEC 1308 (‘Steber’) that the test for view obstruction need not necessarily be met on the day of the hearing, if it could be shown that the trees had earlier reached the status of causing a severe obstruction and are likely to continue doing so. The Court must be satisfied of this before making orders (s 14E(2)(a)(ii)), so the onus falls to some extent to the applicant to demonstrate this to be the case. For instance, as in Steber, the applicant might provide photographs showing the severity of the view obstruction before the trees were pruned. The Watkinses have not provided any photographs or other evidence demonstrating that the trees severely obstruct their view. Mr Togias stated their gardener will maintain the trees at their current height by pruning them two or three times each year. I am not satisfied that the trees are causing a severe obstruction of a view from the Watkinses’ dwelling and I cannot make any orders.

Orders

7. As a result of the foregoing the Court orders:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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