Wilson v Nisbett

[2021] NSWLEC 1419

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilson v Nisbett [2021] NSWLEC 1419

Hearing dates:

21 July 2021

Date of orders:

21 July 2021

Decision date:

21 July 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – lilly pilly – obstruction of a view – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Category:

Principal judgment

Parties:

Susan Wilson (Applicant)
Stuart Nisbett (First Respondent)
Brigitte Nisbett (Second Respondent)

Representation:

Counsel:
S Wilson (Litigant in Person) (Applicant)
V Conomos (Solicitor) (Respondents)

Solicitors:
Conomos Legal (Respondents)

File Number(s):

2021/74176

Publication restriction:

No

Judgment

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

Background to the application

1. Susan Wilson (‘the applicant’) has lived at her Fairlight property since 1985. From her south-facing kitchen window she has enjoyed a corridor view between neighbouring buildings, including a view of the water of North Harbour and beyond to the hills of Balgowlah Heights. In 2013 or 2014, neighbours to her south, Brigitte and Stuart Nisbett (‘the respondents’), planted lilly pilly hedges along their northern and western boundaries. Ms Wilson found the trees grew into her view, shaded her garden, extended over her property, and developed pest problems. She has often asked the Nisbetts to prune the trees, which they have sometimes done, but not to her satisfaction. Ms Wilson applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the trees to be pruned or removed to restore her view. She also sought an order to prevent the respondents installing structures that might obstruct her view.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F in this matter include privacy, amenity, and the response of the trees to pruning.

3. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent (in this matter) a severe obstruction of a view from a window of the applicant’s dwelling.

The hearing

4. Due to current COVID-19 restrictions, the hearing took place online. The parties filed sufficient evidence so that, along with their thorough submissions, I was able to make this decision without requiring a subsequent site view. The Court was greatly assisted by the report and oral evidence of Mr Betros, town planner for the respondent.

The applicant made reasonable effort

5. Mr Conomos, for the respondents, argued that Ms Wilson’s efforts to reach agreement did not meet the threshold at s 14E(1) of the Trees Act. Despite her emails asking the Nisbetts to prune the trees, she did not request mediation on the matter, nor did she warn them to her pending application to the Court. Ms Wilson submitted that she had received negative responses to her earlier attempts to resolve other issues with the Nisbetts, such that she felt there was little hope of gaining a positive outcome by negotiating. Neighbourly relations can be fractious, and once communication channels are constrained it can be difficult to restore them. I am satisfied that, for the purposes of the Trees Act, Ms Wilson’s efforts were reasonable.

The trees form a hedge

6. Seven lilly pilly trees (possibly Syzygium paniculatum) are planted in a straight line at close and regular spacings in a bed along the Nisbetts’ western boundary. A further 10 lilly pillies are planted in a row along their northern boundary. A survey plan shows that all trees are more than 2.5 metres in height. They are therefore trees to which Pt 2A of the Trees Act applies.

The trees do not severely obstruct the applicant’s view

7. Relying on photographs provided by Ms Wilson and on others provided by Mr Betros, I have assessed the view and any obstruction caused by the trees. Ms Wilson provided a photograph taken from her kitchen window before the hedge was planted (in Exhibit C). Between the Nisbetts’ dwelling and the building on the property to their west, a section of North Harbour is visible, along with the treed landscape beyond. It is a relatively narrow view, but one greatly appreciated by Ms Wilson. The boundary wall between the Nisbetts’ property and their neighbours extends southward to the extent that it obstructs part of the water view. On the property to the Nisbetts’ west, stems of recently pruned trees (possible lilly pillies also) can be seen. Parts of the water view remains around those bare stems.

8. In Mr Betros’ photo taken in May 2021, most of the water view is still available. If the Nisbetts’ trees obstruct any of that water view, it is perhaps less than 5%. A greater portion of the view is now obstructed by palms growing in the landscape further south of the Nisbetts’ property. Trees on the property to the Nisbetts’ west appear bushier than in the earlier photo, and they too now obstruct part of the water view. Relying on these photographs, I find the obstruction caused by the Nisbetts’ trees cannot be described as severe, nor even moderate. It is minor at most. Even the photo taken by Mr Betros standing further back in Ms Wilson’s kitchen shows the obstruction is not severe.

9. Based on the above, it follows that the Court cannot make any orders. Other issues raised by Ms Wilson, such as shading to her garden and the presence of pests on the trees, do not provide any jurisdiction to make orders either. As a result, the application will be refused.

10. Had I found the obstruction to be severe, I would be required to consider matters at s 14F of the Trees Act. I note here that the trees provide privacy screening to the Nisbetts. At their current height, the trees strike a suitable balance of privacy while retaining Ms Wilson’s view. Were they significantly taller, that might be different.

Orders

11. For the reasons set out above, the Court orders:

1. The application is refused.

2. The exhibits are returned, except for Exhibits A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Amendments

01 September 2021 - Amended jurisdiction to Class 2.

Decision last updated: 01 September 2021