Evans v Anderson [2011] NSWLEC 1024

Land and Environment Court New South Wales

Medium Neutral Citation: Evans v Anderson [2011] NSWLEC 1024 Hearing dates: 21 February 2011 Decision date: 21 February 2011 Jurisdiction: Class 2 Before: Fakes C and Galwey AC Decision: 1. Application to remove trees dismissed. 2. Trees to be pruned and maintained at a specified height. Catchwords: TREES [NEIGHBOURS]; hedge; severe obstruction of a view; pruning ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Mr M Evans (Applicant) Mr L Anderson (Respondent) Representation: Mr M Evans [litigant in person] (Applicant) Mr L Anderson [litigant in person] (Respondent) File Number(s): 20829 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONERS: This is an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Avalon against the owner of trees growing on an adjoining property. 2The applicant is seeking the removal of nine trees, their replacement with a different species, and the maintenance of the new trees at a specific height. 3These orders are sought because the applicant claims that the trees obstruct views from his dwelling. 4The respondent wishes to retain the trees and has not offered to prune them because of the privacy they afford his dwelling and back garden.

Onsite view and relevant background 5The hearing commenced onsite with an assessment of the view loss from the viewpoint indicated within the applicant's dwelling, that being the main living room and attached balcony. We assessed the potential view, the impact of the subject trees on the view, and the impact of other trees on the view. We assessed the potential for overlooking into the respondent's garden and dwelling and the degree of privacy provided to the respondent by any screening effect of the trees. A height stick was used to measure the heights of the trees, the height of the applicant's hedge and the height of the fence. 6We then viewed the trees from the respondent's property and assessed the privacy provided to his dwelling and rear garden by the trees. 7The trees, nine Leighton Green Cypress, from a row along the boundary dividing the two properties. They range from 4.5 to 5.5 metres tall. They provide a dense visual screen along part of the common boundary. 8The applicant purchased the property in 2000. The Cypress trees were planted in 2003. The applicant's dwelling was constructed in 2004. The dwelling is higher on the hill than the respondent's dwelling and was designed to take advantage of the available views. Photographs taken during construction show the Cypress trees were less than two metres tall at that stage and did not obstruct the view at all from V1. 9The issues of privacy and overlooking were considered during the development application, as Council required frosted glass in many of the windows overlooking the respondent's property. A row of Lillypillies along the same boundary but within the applicant's property is 2.8 to 3.3 metres tall. These trees were planted as part of the approved landscape plan included with the development application. They do not obstruct the view and would provide some, but not complete, privacy to the respondent. 10There is a Banksia in the rear garden of the respondent's property that is to the south of and slightly taller than the Cypress trees. It partially obstructs the view but its canopy is not a dense screen like the Cypress trees. There are 2 other Banksias in the respondent's garden to the east; these and other trees further distant could be considered to be part of the view, rather than blocking the view. 11From the indicated viewing point in the applicant's dwelling (V1) the trees obstruct the view to the southeast. The view includes the ocean (but not the beach), Bangalley Headland Reserve and other trees in the landscape. The view could be seen from both a standing position and from a seated position on the sofa. This scenic view could reasonably be regarded as significant. 12Considering the above, we find that the Cypress trees do severely obstruct the view. 13Looking from the respondent's property it is clear that the Cypress trees provide significant privacy to the garden and dwelling. However it is also clear that even from the furthermost part of the garden, the tops of the trees are well above the sightline to the applicant's lounge room (V1) and trees at a shorter height would provide equivalent screening.