Ho v Warczak [2015] NSWLEC 1020

Land and Environment Court New South Wales

Medium Neutral Citation: Ho v Warczak [2015] NSWLEC 1020 Hearing dates: 16 February 2015 Date of orders: 16 February 2015 Decision date: 16 February 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld – see paragraph[9] Catchwords: TREES [NEIGHBOURS] Consent orders; Hedge, views; pruning ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Ningci Ho (Applicant) Michael Warczak (Respondent) Representation: Counsel: Applicant: Ms J Reid (Barrister) Respondent: Ms P Murray (Solicitor)

Solicitors: Respondent: DibbsBarker Lawyers File Number(s): 20864 of 2014

Judgment 1. COMMISSIONER: The applicant has applied under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the removal or pruning of trees the applicant contends are severely obstructing a view from his dwelling in Bellevue Hill. 2. The parties ask the Court to agree to Consent Orders requiring amongst other things, the pruning of a row of conifers growing on the respondent's property. 3. Before agreeing to the parties' request, a number of jurisdictional tests must be satisfied before the Court's powers to make orders under s 14D are engaged. 4. The hearing commenced on site. There is no dispute that the trees, the subject of the application, are trees to which Part 2A applies. That is, there are two or more trees planted so as to form a hedge and which rise to a height of at least 2.5m (s 14A(1)). According to the applicant's arborist, Ms Catriona McKenzie, the trees are a cultivar of Chamaecyparis lawsoniana (Lawson False Cypress). Tree 11 is dead. 5. The next relevant jurisdictional test is satisfaction of s 14E(2). This states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 1. The applicant's principal living area is at the rear of the ground floor of the dwelling. While there remains a partial view of a portion of the harbour from the dining room, the trees severely obstruct the harbour view from the living room and adjoining terrace. I am satisfied to the extent required that s 14E(2)(ii) is met. 2. The respondent values the trees for the privacy they afford his dwelling and tennis court. The respondent's property is downslope and is overlooked by properties other than the applicant's. 3. The orders propose pruning the trees in a stepped fashion to heights that meet the needs of both parties by restoring the main view corridor from the applicant's property and retaining a reasonable level of privacy for the respondent. Therefore I am satisfied that the agreed position meets s 14E(2)(b) and the Court's jurisdiction to make orders under s 14D is engaged. 4. Having had the benefit of the site view and Ms McKenzie's oral evidence, by consent the Court orders: 1. The respondent is to prune, up to 2 times per year (at not less than 5 month intervals), the 4 Conifer trees located in "Location 1" as shown on the plan annexed hereto and marked "A" (Plan) on the respondent's property adjacent to the northern end of the north western boundary of the applicant's property so that they do not exceed the heights shown on the Plan. 2. The respondent is to prune, within 45 days, the 6 Conifer trees on the respondent's property adjacent to the north western boundary of the applicant's property in the location marked "Location 2" on the Plan to the heights shown on the Plan. 3. The respondent is to prune, up to 2 times per year (at not less than 5 month intervals), the 6 Conifer trees in "Location 2", referred to in order 2 above, so they do not exceed the height shown on the Plan. 4. The respondent is to prune, within 45 days, the 1 Conifer tree on the respondent's property adjacent to the north western boundary of the applicant's property in "Location 3" on the Plan so as to not exceed the height shown on the Plan. 5. The respondent is to prune, up to 2 times per year (at not than 5 month intervals), the 1 Conifer tree in "Location 3" as shown in the Plan and referred to in order 4 above, so that it does not exceed the height shown in the Plan. 6. The respondent is to remove, within 45 days, the dead Conifer tree on the respondent's property and marked as "Dead Tree" or T11 on the Plan. 7. The Court notes the applicant's undertaking that he will grow, and maintain a hedge at the north western boundary of the applicant's property in "Location 3" on the Plan annexed to a minimum height as shown on the Plan. 8. The Court notes the parties' agreement that each party will bear his own costs of these proceedings. _____________________ Judy Fakes Commissioner of the Court 20864 of 2014 Annexure (103 KB, pdf)