Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Land and Environment Court New South Wales

Medium Neutral Citation: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hearing dates: 28 April 2011 Decision date: 20 May 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]; hedge; obstruction of views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012 Hendry & Anor v Olsson & Anor [2010] NSWLEC 1302 Blau v Levi [2010] NSWLEC 1371 Ball v Bahramali [2010] NSWLEC 1334 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: APPLICANT Grantham Holdings Pty Ltd

RESPONDENT Mr G Miller Representation: Mr A Galasso (Applicant) Mr A Stafford (Applicant)

Ms S Duggan (Respondent) Mr M Seymour (Respondent) Baker & McKenzie (Applicant) Donohoes Commercial Lawyers (Respondent) File Number(s): 21052 of 2010

Judgment 1COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Whale Beach against the owner of trees on an adjoining property. 2The applicant is seeking orders for the pruning and subsequent maintenance of a number of trees on the respondent's property to a height of 2 m at the respondent's cost. The applicant is also seeking orders that the respondent pay the applicant's costs in the making of the application. With respect to the order for costs, Commissioners do not have the jurisdiction to award costs and a separate application must be made. 3These orders are sought on the basis that the trees subject to the application severely obstruct views from the applicant's dwelling of Whale Beach. The applicant is also seeking these orders on the basis of future loss of views should the trees grow to their full size. The hearing and evidence 4The applicants' property is located in an elevated position on the eastern-most point of the southern headland of Whale Beach. The applicant's property overlooks that of the respondent. 5The principal views include parts of the vegetated slopes and dwellings of Whale Beach, the majority of Whale Beach except the most southerly portion but includes the sand, surf zone, northern headland, rocky foreshores, the ocean and distant views to north of Broken Bay. The arc of the view is generally from the northwest to the east. 6The original application identified eleven trees on the respondent's property. It appears that the original application was based on a plan and report prepared by Mr Chris Miller, Impact Planners Pty Ltd in September 2010 (the Miller Report). Upon revisiting the site in March 2011, Mr Miller identified additional plants including a small plant in a gap as well as five trees around and to the west of tree 11. At the hearing, leave was granted to amend the application to include an additional tree. This tree, tree 12 is located in what is shown on the original diagram in the application as a gap in the hedge between trees 5 and 6. The inclusion of the five trees near tree 11 was not pressed. 7The following table identifies each of the trees and their heights. The source of the heights in this table is Exhibit B pp 7-8, Arborist report - Mr Kyle Hill dated 21 March 2011. The trees are numbered from east to west.