Ham v Hawkins [2024] NSWLEC 1462

Land and Environment Court New South Wales

Medium Neutral Citation: Ham v Hawkins [2024] NSWLEC 1462 Hearing dates: 27 March 2024 Date of orders: 27 March 2024 Decision date: 27 March 2024 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 – claimed severe obstruction of views and sunlight – do the trees form a hedge for the purpose of the Act – s 14F considerations – oversight from applicant's dwelling – privacy important Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Wood v Barnes [2017] NSWLEC 1106 Category: Principal judgment Parties: Kiam Ham (Applicant) Grahame Hawkins (First Respondent) Liz Hawkins (Second Respondent) Representation: Counsel: K Ham (Self-represented) (Applicant) C Koikas (Respondents)

McKees Legal Solutions (Respondents) File Number(s): 2024/31569 Publication restriction: Nil

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

Background 1. COMMISSIONER: Kiam Ham, the applicant, shares a common side boundary with Grahame and Liz Hawkins, the respondents, between their properties in Mosman. Mr Ham has occupied his property since 2009 while the respondents have lived in situ since 1999. 2. Disputes between the parties commenced in 2010 over a hedge, a retaining wall, and the installation of a high fence by the respondents which allegedly blocked Mr Ham's water views from the lower level of his dwelling. In response to an objection to Mosman Council (Council) by Mr Ham, the approved height of a 2010 addition to the respondents' dwelling was reduced, "to maintain the water view from the adjoining property". 3. The Hawkins' back garden included trees and shrubs growing near the common boundary which Mr Ham claimed were increasingly obstructing his views. In 2010, the parties undertook mediation and with assistance from their legal representatives, made a formal agreement for the respondents to retain their vegetation below the top of the common boundary fence. 4. Mr Ham claimed the respondents had planted three trees within the required view clearance since 2013: an Olive tree, a Fig Tree, and an unidentified flowering tree. The applicant alleged the Hawkins failed to comply with the 2010 agreement, regardless that Mr Ham sent them an annual reminder since 2013. 5. In 2019, Council approved a development application (DA) from Mr Ham for demolition and construction of a new two-storey dwelling, which retained west facing windows roughly in existing positions but added considerably to the rear of the upper level. Upon completion in 2020, Mr Ham occupied the dwelling and resumed requests for tree pruning by the respondents. 6. In February 2023, Mr Hawkins lodged an application with Council for Fig tree pruning and was granted permission to prune up to 10% of the tree's canopy with a condition in Council's determination that "[t]ree height is not to be reduced". In March 2023, the respondents' legal representatives advised Mr Ham of Council's determination of the pruning application and withdrew a prior offer to maintain the Fig tree at or below an agreed height. 7. In November 2023, the respondents received a letter from Council's Director of Environment and Planning regarding a complaint from a customer about the view impacts of the Fig tree. The letter advised, "should you wish to make an application to prune or remove the tree in question, Council would consider this favourably. It is understood this action would resolve the issue and would seek to restore Council's intention with view sharing when it considered your development application some time ago". 8. As the respondents made no further application to Council for Fig pruning or removal, Mr Ham made an application under s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), proposing the Court make orders to restore his views and sunlight obstructed by the respondents' trees.