Johns v Breuer [2012] NSWLEC 1095

Land and Environment Court New South Wales

Medium Neutral Citation: Johns v Breuer [2012] NSWLEC 1095 Hearing dates: 28 March 2012 Decision date: 17 April 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal and replacement of some trees; ongoing maintenance of replacement trees Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke [2008] NSWLEC 152 Ball v Bahramali & Anor [2010] NSWLEC 1334 Tenacity Consulting v Warringah [2004] NSWLEC 140 Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146 Hinde v Anderson & anor [2009] NSWLEC 785 Category: Principal judgment Parties: Mr S Johns (Applicant) Mr T Breuer (Respondent) Representation: Applicant: Mr P Speed (Solicitor) Respondent: Ms S Duggan (SC) Applicant: Speed and Stracey Lawyers Respondent: Susan Hill & Associates Lawyers File Number(s): 21197 of 2011

Judgment 1COMMISSIONER: Mr Johns purchased his property in 1988. At that time he contends he had extensive views from the ground floor and uninterrupted views from the first floor of his dwelling. The principal views are to the northwest across Rose Bay, Shark Island, Sydney Harbour, and Vaucluse to Middle Head. Mr Johns has applied to the Court for orders to restore those views that he says are now severely obstructed by a row of ten trees growing on Mr Breuer's property. 2This application is made pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders sought are the removal of ten trees (T1-T10) and their replacement with a suitable species that can be hedged and maintained at a height of 1.8m above an existing stone retaining wall on the common boundary (RL 76). In the alternative, the removal of T2 - T10 and the annual pruning of T1. Mr Johns will contribute a maximum of $10,000 for the removal and the replacement of the trees, with the parties to share the cost of subsequent pruning. 3Mr Breuer values the trees for privacy but would agree to the removal of all Leyland Cypress trees (Trees 2, 3,4,6,7,8,10), the retention of all Celtis sinensis (T1, 1A, 5 and 9), the replacement of the Leylands with advanced specimens of a species not excluded from Woollahra Council's Tree Preservation Order and their maintenance at a height of RL 77.2. Mr Breuer would share the cost of all ongoing pruning but contends that Mr Johns should pay the full cost of the removals and their replacement with specimens at least 4.5m tall.