Manson v White [2011] NSWLEC 1295

Land and Environment Court New South Wales

Medium Neutral Citation: Manson v White [2011] NSWLEC 1295 Hearing dates: 17 October 2011 Decision date: 17 October 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 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Category: Principal judgment Parties: D & J Manson (Applicants) B & S White (Respondents) Representation: Applicants: D & J Manson (litigants in person) Respondents: B & S White (litigants in person) File Number(s): 20420 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is application pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Lennox Head against the owners of three trees growing on adjoining land. 2The applicants are seeking orders for the removal of the three trees, or in the alternative, pruning, at the expense of the respondents, to a height of 3m. 3The applicants contend that the trees severely obstruct their view of Boulder Beach to the southeast, a view they say was uninterrupted when they purchased their property in 1999. 4The trees are growing generally along the rear boundary of the respondents' property. The applicants' property is to the rear and upslope of the respondents' property. Trees 1 and 2 (T1, T2) are Allocasuarina littoralis and T3 is a Corymbia ficifolia 'Summer Beauty'. 5The respondents do not wish to remove the trees or to prune them to the height suggested by the applicants as they value the trees for the shade and privacy they provide. 6Ballina Shire Council did not attend the hearing but submitted written material including the details of the Vegetation Management Order (VMO) that applies to the site. Of some relevance is cl 6.2 of the VMO which states: 6.2 Provided that no significant hazard or other safety issues also exist, the enhancement of views shall not generally be considered as valid reason to remove trees. 7It is important to note that while the Court does consider any relevant council policy, any orders made by the Court will prevail. 8The hearing commenced with an inspection of the trees from the respondents' property. Before the Court can determine a matter, it must be satisfied of a number of jurisdictional tests. Firstly, the trees must form a 'hedge' for the purpose of the Act. Of relevance is s 14A that requires there to be two or more trees, planted so as to form a hedge, that rise to a height of at least 2.5m and are on appropriately zoned land. 9In this matter, the applicants contend that there used to be a row of casuarinas along the respondents' rear boundary but in 2010 four of them were removed. While that is an undisputed fact, an application under Part2A of the Trees Act must be determined on the facts before the Court at the time of the hearing. 10At the time of the hearing I measured the distance between T1 and T2 to be about 6m, and about 4.5m between T2 and T3. There was a quite a degree of separation between the foliage of T1 and T2 to the point where T1 appears as an isolated and individual tree; and as a result, the Court has no jurisdiction to make any order with respect of T1. The foliage of T2 and T3 are virtually touching. Putting the applicants' case at its highest, I am prepared to accept that T2 and T3 could be construed as a 'hedge' for the purpose of the Act. 11Therefore as s 14A was satisfied for two of the trees, the hearing moved to the applicants' property. 12Under s 14E(2)(a)(ii), the Court must not make an order under Part 2A unless it is satisfied that any of the trees to which the Act applies are severely obstructing a view from the applicants' dwelling. The word 'are' requires the trees to be currently obstructing a view and does not apply to any future obstruction of a view. This is discussed in Wisdom v Payn [2011] NSWLEC 1012 and Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122. 13Only if s 14E(2)(a)(ii) is satisfied does the Court need to consider the balancing of the parties' needs in s 14E(2)(b) and the discretionary matters in s 14F. 14The applicants nominated three viewing points. V1 through the living room windows and glass doors (and associated deck) and V2 is through the nearby dining room windows and glass doors. These rooms are located on the upper floor living area of the applicants' dwelling. 15The view in contention is the relatively distant view to the southeast of Boulder Beach including the surf line. 16As T1 is not a tree to which Part 2A of the Act applies, no obstruction as a consequence of that tree could be considered however it was noted that this does filter and moderately obstruct parts of the view to Boulder Beach from V1 and V2. 17The fine branches of T2 slightly obscure parts of the distant surf line from V2 but parts of the beach are visible. T3 does not obscure any part of the beach from either V1 or V2. 18V3 is a ground floor bedroom and associated deck below the living area. From a standing position a filtered view of the surf line could be seen through T2. Depending on where one stands, T3 slightly obscures part of the distant ridgeline of the headland and ocean interface at the northern end of the beach. From a sitting position the surf line is obscured not only by T2 but also by the applicants trees planted along their rear boundary and trees on the property adjoining the respondents' land. 19The applicants stated that their own trees would normally be much shorter but had not been pruned recently as they had been away.