Coghlan v Poppleton [2022] NSWLEC 1745

Land and Environment Court New South Wales

Medium Neutral Citation: Coghlan v Poppleton [2022] NSWLEC 1745 Hearing dates: 10 November 2022 Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court Orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – were views available upon occupation – consideration of privacy Legislation Cited: Interpretation Act 1987, s 34 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14E, 14F Cases Cited: Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Wisdom v Payn [2011] NSWLEC 1012 Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) 2009 Category: Principal judgment Parties: Jason Coghlan (Applicant) Craig Poppleton (First Respondent) Catherine Poppleton (Second Respondent) Representation: J Coghlan (Self represented) (Applicant) C Poppleton (Self represented) (First Respondent) C Poppleton (Self represented) (Second Respondent) File Number(s): 2022/267988 Publication restriction: No

Judgment

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

Background 1. Jason Coghlan, the Applicant, and Craig and Catherine Poppleton, the Respondents, share a boundary between their properties in Bilgola Plateau, which runs from north-west at the front to south-east at the rear. 2. The trees at issue are mature Nerium oleander (Oleander) (the trees), planted close to the common boundary in the Respondents' property, prior to their occupation in 1984. The Applicant submitted that when he occupied his property in 2009, extensive water views were available from his dwelling, but they had since been severely obstructed by the Oleander hedge. 3. The Applicant claimed to have made various unsuccessful personal requests for tree pruning to the Respondents in the past, followed by written correspondence, and unsuccessful attempts to mediate a settlement through a Community Justice Centre. 4. Consequently, Mr Coghlan submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), seeking the following orders: "1. The entire hedge to be pruned on a regular basis by the owner of the land to a height that does not obstruct the view from any viewing point in the applicant's dwelling. 2. Authorise the applicant to prune the entire hedge to a certain height to prevent the obstruction of views from any viewing point in the applicant's dwelling should the hedge not be pruned or maintained at this height by the owner of the land." 1. The Respondents, in a statement to the Court filed on 1 November 2022, note that they prune the trees from "time to time when they become untidy and when we have the time and resources". The Respondents noted the importance of the trees to their "landscaping providing us with a lovely green outlook, privacy, and an effective windbreak from the southerlies, (and) they are on a slope holding up the bank". The Respondents also stress the trees' role in providing shelter and habitat for birds and they re-iterate that without the privacy that the trees provide, "Mr Coghlan's living area looks straight into our backyard", including a swimming pool which is used regularly. 2. When the application was made to the Court, the trees had grown tall and broad. The Applicant claimed they had reached a height of about 8 metres (m) and photographs in the application show obstructed water views. After being served with the application by Mr Coghlan on 1 October 2022 upon their return from a month away, the Respondents claim they advised the Applicant that they were pruning the hedge on 3 October 2022 but were told by the Applicant that it was too late for him to withdraw his application as it was already lodged.