McLaren v Lewis [2011] NSWLEC 1170

Land and Environment Court New South Wales

Medium Neutral Citation: McLaren v Lewis [2011] NSWLEC 1170 Hearing dates: 13 April 2011 Decision date: 28 April 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; nature of a hedge; severe obstruction caused by trees not subject to the Act Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012 Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Mrs S McLaren (Applicant) Mr G Lewis (Respondent) Representation: Mrs S McLaren (Applicant in person) Mr G Lewis (Respondent in person) File Number(s): 20007 of 2011

Judgment 1COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Seaview Street Bonny Hills against the owner of trees growing in an adjoining property in Third Avenue Bonny Hills. 2The applicant is seeking orders for the pruning of 12 trees to approximately 3.5 m above ground level (on the respondent's property) in order to regain views of the nearby coastline from Rainbow Beach to Lighthouse Beach near Port Macquarie. The applicant contends that she had panoramic views when she purchased the property in 1999.

Relevant background 3All trees are located in the rear garden of the respondent's property. The applicant's property adjoins to the south but in a more elevated position. 4It appears that the respondent's mother planted the trees in order to provide privacy to bedrooms on the upper storey of the dwelling. Correspondence between the applicant and the respondent's mother, his stepfather and later himself were tendered by the respondent. 5Some of this correspondence goes back to 2000. A letter dated 22 April 2002 indicates that the applicant sought the pruning of the trees back then on the basis of obstruction of sunlight, loss of views, loss of property value, overhanging of her property and being a hazard. The letter states that back in February 2000 the applicant had been willing to share the cost of the pruning or, "for the sake of our personal safety and property" the full cost. 6In the applicant states that some of the trees were pruned in 2007. A photograph on p6 of exhibit B, taken on 10 January 2007 from the balcony in front of V4 shows lopping of some trees (notably trees 7 and 11) as well as the view, the relationship of the respondent's roofline to the view, as well as other rooflines and vegetation between the respondent's property and the water views. 7In a letter to the respondent's stepfather dated 11 June 2010 the applicant advised that with the passing of the amendment to the Tree Act... It is now law, that you cannot grow high shrubs/trees'' [sic] /hedges that obstruct sunlight or views. Two or more trees which rise above the height of at least 2.5 metres above ground level." [sic]...... Would you please consider again, my request to trim ALL the trees and shrubs in your backyard that exceed a height of 2.5 metres....otherwise I will take this matter to the Land and Environment Court... 8On 6 July 2010 the respondent wrote to the applicant and advised that he was unwilling to lose privacy afforded by the trees. He states My original offer was for you to have the trees trimmed in a straight line from your upper balcony handrail to the gutter line of 7 Third Ave. This is where I judged them to have been trimmed before. When you objected strongly to that I was prepared to move the line to the top of the upper storey windows. I propose that the largest tree that is somewhat to the left of your view be permanently removed [tree 7] , but I would like to see the one to the left of that again [probably tree 2] be left as it is both smaller and looks as if it has reached the limit of its growth. Removal of this tree will reduce your ongoing costs considerably as I think most of the trees on the fence line are near the limit of their growth. 9The subsequent correspondence shows that the parties were unable to reach an agreement as to where trees should be cut and who should pay. 10The respondent's property is currently tenanted as the respondent lives interstate. At the site inspection the location of the trees was verified and the diagram in the application amended. 11In March 2011, the applicant engaged Richard Breheny, Consulting Arborist, to undertake a tree evaluation and prepare a report. While the citing of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct is not in the usual form, the report was accepted into evidence. The following table and the location diagram are taken from his report. Note that the heights of the trees in the table are those measured in March. At the time of the hearing, the respondent's tenants had pruned some of the trees and they had removed one tree without the respondent's knowledge. No. Species Height (m) 1 Backhousia citriodora 5.6 (Lemon Myrtle) Callistemon sp. 2 (Bottlebrush) 6.6 Recently pruned by tenants 3 Acmena sp 5.6 (Lillypilly) 4 Acmena sp 5.6 (Lillypilly) 5 Callistemon sp. 7.4 (Bottlebrush) 6 Camellia sasanqua 3.5 (Camellia) 7 Citharexylum spinosum 8.1 (Fiddlewood) 8 Syzygium australe 5.9 (Brush Cherry) 9 Callistemon sp. 6.4 (Bottlebrush) Stenocarpus sinuatus 10 (Queensland Firewheel) 4.1 Recently removed by tenants 11 Xanthostemon chrysanthus 7.2 (Golden Penda) 12 Callistemon sp. 5.7 (Bottlebrush)