Land and Environment Court New South Wales Medium Neutral Citation: Kennard v Fite (No 2) [2021] NSWLEC 1456 Hearing dates: 30 July 2021 Date of orders: 9 August 2021 Decision date: 09 August 2021 Jurisdiction: Class 1 Before: Douglas AC Decision: The orders of the Court are: (1) The application is granted. (2) Within 60 days of these orders, the First Respondent and the Second Respondent must: (a) prune trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, and 10 as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the 'height line' means a line drawn from the location of tree 6 through to the location of tree 2 through the following points: (i) RL10.32 at the location of tree 6 on the survey; and (ii) RL12.75 at the location of tree 2 on the survey. (b) The 'survey' means the 'Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates', and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level. (c) At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, and 10 be pruned to a height lower than 4.5 metres above ground level. (d) This order also applies to any additional trees between trees 1 and 10 not identified on the survey. (3) Within 60 days of these orders, the First Respondent and the Second Respondent must: (a) Prune trees 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees. (4) The work required under Orders 2 and 3 must be carried out: (a) at the expense of the First Respondent and the Second Respondent; and (b) using the services of a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. (5) The applicant is to provide all reasonable access to the respondents' contracted arborist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing. (6) Should the Leyland Cypress hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at a height no higher than that specified in Orders 2 and 3. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, s 9 Uniform Civil Procedure Rule 2005, r 36.17 Cases Cited: Kennard v Fite [2019] NSWLEC 1327 Texts Cited: AS4373:2007 Pruning of amenity trees Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Claire Kennard (Applicant) David Matthew Fite (First Respondent) Danita Rae Lowes (Second Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/17206 Publication restriction: No Judgment 1. COMMISSIONER: The applicant and the respondents enjoy waterfront access, and views of the Lane Cove River, Woolwich, and Sydney's CBD in the distance, from their properties in Longueville. In early 2019, Mrs Kennard, the applicant, applied to the Land and Environment Court (the Court) pursuant to s 14 B of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act), for intervention with a row of at least 16 XCupressocyparis leylandii (Leyland Cypress) (the trees), which extend from near the rear of her residence down towards the waterfront. This action was successful and orders were made by the Court on 12 July 2019 to remedy a severe obstruction of the applicant's views as a result of the trees. The judgment for these proceedings is found at Kennard v Fite [2019] 1327 (Kennard). 2. The respondents, Mr Fite and Ms Lowes, lodged a Notice of Motion (NOM) with the Court on 5 May 2021, requesting it be dealt with under the slip rule. A letter from the Applicant's solicitor, dated 26 April 2021 was lodged in conjunction with this NOM, noting the applicant's consent "to the terms of the order proposed to be sought by the Respondent's (sic) slip rule application as enclosed with this letter". 3. An affidavit from John Cole, the Respondents' legal representative, dated 5 May 2021 accompanied the NOM. 4. The orders in Kennard included different pruning specifications for trees 1-9, growing in a garden bed which ascends quite steeply towards the north west (Order 2), relative to those made for trees 10-16, which grow in a relatively horizontal garden bed under the boathouse decking (Order 3). 5. The NOM seeks minor changes to the orders in Kennard, on the basis that tree 10 is in fact growing in the raised steeply sloping garden bed, rather than the lower boathouse decking level, and thus should be subject to the requirements of Order 2, and not those of Order 3. Mr Cole's affidavit also noted at [9], "that there are also some additional unmarked trees in the upper group which were not identified in the orders and the applicant and respondent agree these should be treated as part of the upper group to give effect to the Court's determination of the matter". 6. The proposed orders under the NOM are: Pursuant to Uniform Civil Procedure Rule (UCPR) 36.17 the orders of 24 July 2019 are amended as follows: (1) In order 2(a) – omit "and 9" and instead insert "9, and 10". (2) In order 2(c) – omit "and 9" and instead insert "9, and 10". (3) Insert a new order 2(d) as follows: This order also applies to any additional trees between trees 1 and 10 not identified on the survey. (4) Delete "10" from order 3(a). (5) Each party to bear their own costs. 1. Rule 36.17 Correction of judgment or order ("slip rule"), says: If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 1. I am satisfied that the amendments requested relate to "an error arising from an accidental slip or omission" which the Court, "may, at any time, correct". I am also satisfied that the NOM has the consent of both parties and is consistent with the intention of the original orders. For these reasons, the NOM is granted. Orders 1. As a consequence of the amendments above, the orders of the Court are: 1. The application is granted. 2. Within 60 days of these orders, the First Respondent and the Second Respondent must: 1. prune trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, and 10 as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the 'height line' means a line drawn from the location of tree 6 through to the location of tree 2 through the following points: 1. RL10.32 at the location of tree 6 on the survey; and 2. RL12.75 at the location of tree 2 on the survey. 1. The 'survey' means the 'Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates', and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level. 2. At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, and 10 be pruned to a height lower than 4.5 metres above ground level. 3. This order also applies to any additional trees between trees 1 and 10 not identified on the survey. 1. Within 60 days of these orders, the First Respondent and the Second Respondent must: 1. Prune trees 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees. 1. The work required under Orders 2 and 3 must be carried out: 1. at the expense of the First Respondent and the Second Respondent; and 2. using the services of a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. 1. The applicant is to provide all reasonable access to the respondents' contracted arborist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing. 2. Should the Leyland Cypress hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at a height no higher than that specified in Orders 2 and 3. ​​​​​​​………………………… J Douglas Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2021