Land and Environment Court New South Wales Medium Neutral Citation: Chinnock v Kitson [2012] NSWLEC 1061 Hearing dates: 16 March 2012 Decision date: 16 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; severe obstruction of view not found Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tooth v McCombie [2011] NSWLEC 1004 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah [2004] NSWLEC 140 Campbell v Voller [2010] NSWLEC 1351 Category: Principal judgment Parties: Mr E Chinnock (Applicant) Mr G Kitson (Respondent) Representation: Applicant: Mr E Chinnock (Litigant in person) Respondent: Mr G Kitson (Litigant in person) File Number(s): 21213 of 2011 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Batemans Bay against the owner of trees growing on an adjoining property. 2The applicant seeks orders for the pruning of two hedges to the "legislated" height, as well as width or shape, and their ongoing maintenance. This it to be done by the respondent. 3The orders are sought on the basis that the two hedges severely obstruct views form the applicant's dwelling. 4In Part 2A matters, there are a number of jurisdictional tests that must be satisfied. The first is - are the trees a hedge for the purpose of the Act? 5Section 14A(1) requires there to be two more trees, planted so as to form a hedge, and which rise to a height of at least 2.5m. In this matter, there are two groups of trees, both of which meet the criteria in s 14A(1). Hedge 1 is a row of Lillypillies planted at the front of the respondent's property along the common boundary and which partly overhang the applicant's driveway. Hedge 2 is at the rear of the respondent's property and comprises a row of Photinia. 6The applicant refers to the "legislated" height. The height of 2.5m specified in s 14(1) is a threshold height at which the Court's jurisdiction is engaged; it is not a pre-determined height at which a hedge must be maintained. There is not a legislated or prescribed height set down in the Trees Act. 7The next test is whether there is a severe obstruction of a view from the applicant's dwelling. 8Section 14E(2)(a)(ii) states that the Court must not make an order under this Part unless it is satisfied that the trees the subject of the application are severely obstructing a view from a dwelling situated on the applicant's land. The use of the word 'are' means that the view must be severely obstructed by the trees at the time of the hearing. This has been examined in a number of judgments including Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] with further lengthy discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]. 9There were no nominated viewing points indicated in the application claim form but four were nominated at the hearing. V1 is an upper level deck at the rear of the dwelling which adjoins the main living area; V2 is the adjoining lounge room; V3 is a front bedroom and V4 is the sewing room at the front ground level. 10From V1 and V2, the applicant is most concerned about the loss of views to the east of the Clyde River and the bay. The Photinia hedge is relevant to these viewing points. When seated at the table on the deck, as a person of below average height, I was able to see the river and the bay. The tops of the Photinias were just at the bottom of the field of view. 11Using the scale of severity of impact described in Tenacity Consulting v Warringah [2004] NSWLEC 140, a planning principle frequently referred to in Part 2A matters, I assessed the impact on the view to be minor from a sitting position and negligible to nil from a standing position. The overall view to the east of the river, bay and ocean is generally punctuated by vegetation, some of which is remnant tree cover quite close to the parties' properties. There are also seated views to the river through the trees to the south that are unaffected by the Photinias. 12From various seated positions in the lounge room (V2) I found the impact of the Photinias on the views to be negligible to minor. The majority of the obstructions are as a result of the configuration of the room and trees other than the hedge. 13V3 is the front bedroom on the north-eastern corner of the applicant's dwelling. District views of forest to the north and northeast from a standing position are unimpeded by the Lillypilly hedge. 14V4 is the sewing room immediately below V3. There was no particular view that was obstructed. The main concern with the Lillypilly hedge appears to be the fact that it overhangs one of the applicant's driveways making it slightly difficult to get out of a car. There is also a concern about visibility when exiting the driveway. These issues are not within the jurisdiction of Part 2A and are discussed in Campbell v Voller [2010] NSWLEC 1351 at [7]. 15While I acknowledge the applicant's concerns about overhanging branches and the potential loss of views as the trees grow, the Trees Act is quite clear in its scope and I would be in error if I departed from it. 16After visiting the site and observing the views from each of the nominated positions I find that Hedge 1 - the Lillypilly hedge does not severely obstruct any view from the applicant's dwelling. As s 14E(2)(a)(ii) is not met, the Court cannot make any orders for any intervention with this hedge. 17With respect to the Photinia hedge, it is causing only a minor obstruction of a view from a seated position. As discussed in Tenacity , seated views are more difficult to retain than standing views. With respect to standing views, there is at most a negligible impact. Therefore, as for hedge 1, s 14E(2)(a)(ii) is not satisfied and no orders can be made under the Trees Act for any pruning. 18Therefore, as a consequence, the Orders of the Court are: (1)The application is dismissed. ________________________ J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2012