White v Baird

[2014] NSWLEC 1189

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	White v Baird [2014] NSWLEC 1189
Hearing dates:	22 July 2014
Decision date:	11 September 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. Orders are made for pruning at paragraph 97
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; privacy; no action taken by respondent; consideration of TPO; orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Texts Cited:	Woollahra Municipal Council Tree Preservation Order 2006 Woollahra Tree Management Policy 2011
Category:	Principal judgment
Parties:	Christopher White (Applicant) Michelle Baird (Respondent)
Representation:	Wilshire Webb Staunton Beattie (Applicant) Apex Law (Respondent) Mr A Hudson, solicitor (Applicant) Ms A Hemmings (Respondent)
File Number(s):	20181 of 2014

Judgment

The application

1. The Whites have lived in their Rose Bay dwelling since early 2008. At the outset of their occupancy, they say, they enjoyed views to the harbour, a headland at Nielsen Park and the surrounding districts. On the grounds that they have now lost those views due to the growth of trees on the neighbouring property, in particular three hedges, Mr White ("the applicant") has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for trees in the three hedges to be pruned and maintained at specified heights.

1. Ms Baird ("the respondent") owns and resides at the neighbouring property on which the trees grow. She values the trees for the privacy and amenity they provide and does not wish to prune them at all.

1. There is no dispute between the parties with regard to the jurisdictional tests at s 14A of the Trees Act. Having observed the trees I am satisfied that trees in each of the three groups are planted so as to form a hedge, and that they rise to a height of at least 2.5 metres. Therefore Part 2A of the Trees Act applies to all three groups of trees.

1. Ms Baird, however, disputes that trees in the three hedges cause a severe obstruction of a view. Furthermore, she says the Whites do not have a right to gain a view they did not have when they first arrived at their property. And finally, she argues that the combination of amenity and privacy provided by the trees outweighs any reasons there may be for pruning the trees.

Framework of the Trees Act

1. Therefore, to establish if the Court has jurisdiction over the hedges, as required at s 14E(2)(a)(ii), I must first establish if the trees are severely obstructing a view from the applicant's dwelling. This necessitates an assessment of the view, the severity of any view obstruction and the contribution of the trees to any such obstruction.

1. If I find that the trees do cause a severe obstruction of…