Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146

Land and Environment Court New South Wales

Medium Neutral Citation: Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146 Hearing dates: 9 May 2011 Decision date: 10 May 2011 Jurisdiction: Class 2 Before: Moore SC; Hewett AC Decision: In Matter No: 21041 of 2010, the application is dismissed. In Matter No: 21040 of 2010: 1.With respect to the group of four Cypress trees located on the southern boundary of the respondent's property at the approximate mid point of that boundary, the respondent is ordered to prune, within thirty days, those trees to a height not exceeding 4.5 m above ground level at the base of the trunks of those trees. 2.The respondent is to maintain those four trees, pruned so that at no time in the future do they exceed a height of 4.7 m above the ground level at the base of the trunks of those trees. 3.With respect to the trees across the eastern boundary, the respondent is to prune those to a height of 5 m above the existing natural ground level for each of those trees at the point where the trunk enters the ground. 4.The pruning in (3) is to be maintained so that at no time in the future do any of those trees exceed a height of 5.2 m above the height required for the initial pruning. 5.All pruning of the trees on the southern and eastern boundaries of the property is be carried out within thirty days of these orders. 6.The pruning in (1) to (4) is to be conducted by an arborist with AQF level 3 qualifications and appropriate WorkCover insurances. 7.At the time the pruning in (3) is to be carried out, the respondent shall arrange for a wildlife carer of an organisation such as WIRES or similar be present at the time of the pruning in order to be able to undertake a capture, trap and release for the possum that appears to be resident in the southern end of those trees. 8.To the extent that it may be necessary for the person carrying out of the pruning of the trees in (3) and (4) to access the air space of the applicants' property for the purposes of effecting the pruning to the trees on the eastern boundary, such access is required to be given by the applicants on reasonable notice, at a reasonable hour of the day, and subject to the applicants having the right to supervise that access if it is required. 9.If for some reason, it is necessary for there to be physical access (other than access to the air space) to the applicants' property for the purposes of giving effect to the pruning along the eastern boundary, physical access is to be made available on reasonable notice, at a reasonable hour of the day, and with the applicants having the opportunity to supervise that access if it were to be required. 10.The pruning and the wildlife rescue costs are to be met by the respondent. 11.The ongoing pruning costs are to be met by the respondent; and 12.If, for any reason, the respondent fails to carry out any of the orders for pruning or wildlife rescue that have been made, the applicants have leave to re-approach the Court to enable the Court to consider whether any order should be made pursuant to s 14(2)(g) and (h) of the Trees (Disputes Between Neighbours) Act 2006 to permit the applicants to carry out the works and recover the cost of the carrying out of the works from the respondent. Catchwords: HEDGES - obstruction of views - privacy Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Haindl v Daisch [2011] NSWLEC 1145 Category: Principal judgment Parties: Matter No 21040 of 2010: P & M Coleman (Applicants) L Scern (Respondent)