Akhurst v Fletcher [2023] NSWLEC 1534

Land and Environment Court New South Wales

Medium Neutral Citation: Akhurst v Fletcher [2023] NSWLEC 1534 Hearing dates: 14 June 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –high hedges – views and privacy – were the trees planted so as to form a hedge Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14C, 14D, 14E, 14F Cases Cited: Hickey v Inman [2022] NSWLEC 1491 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 McDonald v Sheehan [2022] NSWLEC 1159 Wein v Reeves [2022] NSWLEC 1019 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: William John Akhurst (First Applicant) Roslyn Helen Akhurst (Second Applicant) Claire Eileen Fletcher (Respondent) Representation: Counsel: W Akhurst, (Self-represented) (Solicitor) (First and Second Applicant) C Fletcher (Agent) (Respondent)

Solicitors: Stacks Law Firm, Forster (First and Second Applicant) File Number(s): 2023/88251 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: William and Roslyn Akhurst, the applicants, who occupied their Forster property in 1987, have for many years enjoyed views of One Mile Beach, Cape Hawke, and the ocean from their living area, kitchen, and rear balcony, across the top of trees in neighbouring properties. In the recent past, trees in an adjacent property have grown to obstruct these views. 2. The property of the respondent, Claire Fletcher, is located east of and at a lower level than the applicants' land and the trees provide screening and contribute to the respondent's garden. In the absence of the trees, the applicants would be exposed on their rear balcony, from which they overlook the respondent's house and rear yard. The parties access their properties from different streets and the common boundary is where the eastern corner of the applicants' property meets the western corner of the respondent's land. The parties' rear boundaries are oriented from north-east to south-west. 3. Mr Akhurst, a solicitor, wrote letters of demand to Ms Fletcher on 27 January 2023, 6 February 2023, 10 February 2023, and 20 February 2023, which proposed pruning and maintenance of the respondent's trees at a height of 2.5 metres (m) to relieve view obstruction, at the applicants' cost. Mr Akhurst also noted provisions in the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) "for a relevant application to the Land and Environment Court", and said, "We wish to avoid this if possible". 4. Regrettably, all these letters were sent to the wrong address, an empty dwelling across the road from Ms Fletcher, and to a disused email. Therefore, the initial notification of the proposed tree pruning was upon service of the application, pursuant to s 14B of Pt 2A of the Trees Act, on 23 March 2023, followed by an amended application with the respondent's correct address, on 31 March 2023. At this time, Ms Fletcher was recovering in hospital from surgery, and the application was served on the respondent's daughter, Raelene. 5. The applicants proposed the Court make the following (summarised) orders: 1. Prune all trees blocking the applicants' view to no higher than 2.5 m above natural ground level. 2. Maintain all trees blocking the applicants' view at a height no greater than 2.5 m above natural ground level, at all times. 3. Respondent shall allow the applicants' chosen qualified arborists with appropriate insurance to access her property for completion of works in Orders (1) and (2). 1. The respondent's son, Nathan, a greenkeeper, wrote to the Akhurst's on 28 April 2023, and advised the applicants that they had used incorrect addresses for letters and emails and that he would be handling this matter on behalf of his ill mother. Nathan also noted that details about the trees on the site diagram in the Tree Dispute Claim Details (Form G) were incorrect. 2. The applicants submitted that the hedge comprised three Elaeocarpus reticulatus (Blueberry Ash) (T1 – T3), two Callistemon sp. (Bottlebrush ) (T4 – T5), and one Dracaena marginata (Dracaena) (T6), all of which they claimed were planted in about 2017. Nathan claimed there were two Blueberry Ash and one Bottlebrush tree, along with the Dracaena, and added that he had planted the Dracaena in 1994 and his father had planted the Blueberry Ash trees in about 1996. 3. The respondent proposed the following (summarised) alternative orders: 1. Dracaena (T6) may be removed or pruned to 2.5 m; 2. Bottlebrush (T5) and Blueberry Ash (T2) may be pruned to the same height as an Avocado tree located in applicants' east side neighbours' yard; 3. Blueberry Ash (T1) may be pruned to above the tree's second fork; 4. Pruning works to be carried out by an arborist of the respondent's choosing, with cost of works borne by the applicants.