Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107

Land and Environment Court New South Wales

Medium Neutral Citation: Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Hearing dates: 21 April 2011 Decision date: 12 May 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; two trees ordered for removal Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of iconic view Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Wisdom v Payn [2011] NSWLEC 1012 Tenacity Consulting v Warringah [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC Category: Principal judgment Parties: Mr D Ridley (Applicant) The Owners Strata Plan No. 60662 Representation: Mr A Perkins (Solicitor for the Applicant) Colin Biggers and Paisley

Mr D Loether (Solicitor for the Respondent) Bartier Perry File Number(s): 21039 of 2010

Judgment 1COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property at 13 Le Vesinet Drive, Hunters Hill against the owner of palm trees growing between Blocks B and C Strata Plan 60662 - Pulpit Point, 2-10 Le Vesinet Drive.

The application 2The applicant seeks the following orders: (1)The removal and disposal of the Palm Trees situated between the access area between Lots 2-10 and Lots 11-20 of SP60662. (2)That any further planting of trees or vegetation at the relevant location be limited to plants and trees to the height of the adjacent approved building (at maturity). 3These orders are sought on the basis that the trees severely obstruct views across Fern Bay of the Harbour Bridge and parts of the harbour from his dwelling. The original application identified 13 palms in dispute. The applicant subsequently limited the scope of the application to 6 palms marked T1 - T6 on a survey plan by Proust & Gardner Consulting Pty Ltd dated 24.02.2011. However, the respondents' arborist Mr P Castor of the Tree Wise Men surveyed the trees on 21.03.2011 and noted the omission of two trees. Proust & Gardner Consulting Pty Ltd produced an amended survey dated 20 April 2011 to include the missing trees. An application to amend the application to apply to trees 1-8 was allowed. 4The trees are Washingtonia robusta (Mexican Fan Palm) planted in terraced garden beds between the garages at the rear of Buildings B and C and close to the Le Vesinet Drive frontage. The respondent's buildings step down the slope towards the water. The respondent's property is located across the road and directly opposite the applicant's dwelling. In the matter of P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 it was held that trees located across a public street are on 'adjoining land'; the parties agreed that the Court has jurisdiction to hear the matter. 5The applicant states that he purchased his property in August 2006. The house was tenanted from August 2006 to May 2008. From the applicant's affidavit (exhibit A) it appears he moved into the property in mid 2008. The affidavit states at [16] At the time of purchasing and moving into the property, the Trees were present on the Respondent's property and measured approximately 7 metres . 6At the time of purchase, the applicant contends his property had expansive easterly views of Sydney harbour which included a view of the Harbour Bridge and the city skyline. These views were available from the breakfast/kitchen area on level 1 (V1 in the application), the level 1 balcony (V2), the lounge room on level 1 (V3) the upstairs master bedroom and level 2 balcony. 7The applicant's position is that the views of the Harbour Bridge are now obscured completely or partially from all three nominated viewing points on level 1 as a result of the trees subject to the application. 8The applicant's evidence includes correspondence between the parties concerning the palms going back to December 2007. I note that part of the affidavit and a significant portion of the correspondence from the applicant refers to the palms harbouring possums and vermin such as rats that may attract snakes. These issues were not raised during the hearing but are raised and disputed in the affidavits of the owners and occupiers of the nearby units. Whether or not these creatures are present has little relevance to proceedings pursuant to any part of the Trees Act apart from considerations under s 14F(g).