Burns v Burkett [2023] NSWLEC 1142

Land and Environment Court New South Wales

Medium Neutral Citation: Burns v Burkett [2023] NSWLEC 1142 Hearing dates: 18 January 2023 Date of orders: 29 March 2023 Decision date: 29 March 2023 Jurisdiction: Class 1 Before: Douglas AC Decision: The orders of the Court are: (1) The application is refused Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing views – balance between views and privacy Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A, S 14A, 14B, 14C, 14D, 14E, 14F Cases Cited: Steber v Job [2019] NSWLEC 1308 Tooth v McCombie [2011] NSWLEC 1004 Category: Principal judgment Parties: Ulrike Burns (First Applicant) Colin Burns (Second Applicant) Daryl Thomas Burkett (Respondent) Representation: N Hanna (Solicitor) (Applicant) D Burkett (Self-represented) (Respondent)

Solicitors: Hanna Lawyers (Applicant) File Number(s): 2022/297197 Publication restriction: Nil

Judgment

Background 1. Mr and Mrs Burns, the applicants, occupied their property in Mount Warrigal in the Illawarra region, in 1998, while the respondent, Mr Burkett, purchased and occupied his property in 2011. The parties share an east - west rear boundary, and the applicants' land is south of the respondent's property. 2. In about 2006, the prior owner of the respondent's property planted a row of Photinia x fraseri 'Red Robin' (Red Tip Photinia) (the trees) along the length of his rear boundary. Mrs Burns submitted that the trees were pruned by the prior owner of the respondent's property once they grew tall. 3. Mr and Mrs Burns attached an array of photographs to their application. Each photographs included a date, and Mr Burkett did not dispute their veracity. A photograph dated 1 March 2013 displayed broad views of Lake Illawarra and the distant escarpment gained above the roofline of the respondent's dwelling. Views were partially restricted by the applicants' Grevillea bushes to the east and by the higher roofline of the dwelling of the respondent's west side neighbour. A photograph dated 29 July 2017 showed that the hedge had grown to a height above 4 m, heavily obstructing the applicants' desired view. 4. At Question 30 of the Tree Dispute Claim Details (Form G), with respect to efforts made to reach agreement, the applicants note that after their Solicitor, Mr Hanna of Hanna Lawyers, sent letters to the respondent on 22 August 2017, 3 October 2017 and 31 October 2017. 5. The letters from Hanna Lawyers demanded pruning of the trees by the respondent at a height of 2.5 m to restore the applicants' view, subsequent maintenance of the hedge by the respondent at a height below 2.7 m, and also required Mr Burkett to enter into a signed legal agreement to that effect. The letter of 31 October 2017 threatened the commencement of legal action under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), should the respondent not comply. 6. Mr Burkett pruned the hedge to restore the applicants' view and sent a letter acknowledging completion of the pruning to Hanna Lawyers on 3 November 2017. In the letter, the respondent said, "As I have done what was required, I will not sign any further documents". 7. A photograph dated 3 March 2020 showed that the hedge had grown to an average height of about 3.8 m, obstructing the applicants' view of Lake Illawarra, though the applicants' escarpment views were retained. Hanna Lawyers wrote to Mr Burkett on 28 April 2020, again demanding pruning and subsequent maintenance of the hedge by the respondent at a height of 2.5 - 2.7 m and requesting that Mr Burkett enter into an agreement with the applicants for the "continued maintenance of your hedges'". 8. This letter of 28 April 2020 put Mr Burkett on notice that should he not prune the hedge to 2.5 m within 21 days and subsequently maintain the hedge below 2.7 m, an application under s 14C of the Trees Act would be filed with the Court. The letter advised Mr Burkett that failure to enter into a legal agreement to maintain the hedge would also "result in the commencement of proceedings against you, regardless of whether you comply with the notice above" (for pruning within 21 days). Further, the letter noted that such application made under the Trees Act would include "an application to the Court for a costs order against you". 9. On 18 May 2020, Mr Burkett advised Hanna Lawyers that he had pruned the hedge to 2.5 m as requested but that under advice, he would not sign a maintenance agreement. A photograph in Form G, dated 18 May 2020, shows that the hedge had been pruned to a height of about 2.5 m, with all desired views and about half of the respondent's roof exposed to the applicants. 10. Mr and Mrs Burns claimed, at Question 30 of Form G, that "From the period of 2020 to 2022, the Respondent failed to maintain the hedges" but a photograph dated 25 January 2021 shows that while the hedge had grown to a height of about 3 m, all the applicants' desired views of Lake Illawarra and the distant escarpment remained unobstructed and available to the applicants, along with about the top 25% of the respondent's roof. 11. The most recent photographs, dated 19 June 2022, which appeared to be taken from a lower vantage closer to the hedge, showed the hedge at an average height of about 3.75 m, but there were many gaps between wispy growth in the hedge's top 500mm, through which impaired but reasonable views of Lake Illawarra remained available. 12. Where trees in neighbouring properties also obstructed both water and escarpment views at both the eastern and western edges of the hedge, it appeared that the hedge was left a bit taller, but entire escarpment views remained available to Mr and Mrs Burns above the middle section of the hedge, where the applicants' views were unobstructed by trees in neighbouring properties. 13. As their desired water view was again obstructed, Mr and Mrs Burns submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees Act, seeking the following (summarised) orders: "Within 30 days of the date of these orders, the respondent shall trim the hedge along his property's southern rear boundary line (the hedge) down to a height of no more than 2.5 metres (m), so as not to obstruct the applicants' northerly views. This hedge height shall be uniform with the roof guttering of the respondent's dwelling. The respondent shall prevent the hedge from growing above a height of 2.7 m, so as not to obstruct the applicant's view from their property. Should the hedge reach a height of 2.7 m, the respondent must prune the hedge to a height of 2.5 m. The respondent is solely responsible for the cost of works required to satisfy Orders 1, 2 and 3. The respondent is to pay the applicant's legal costs on an indemnity basis."