Hellier & anor v Paver & anor [2015] NSWLEC 1235

Land and Environment Court New South Wales

Medium Neutral Citation: Hellier & anor v Paver & anor [2015] NSWLEC 1235 Hearing dates: 24 June 2015 Date of orders: 24 June 2015 Decision date: 24 June 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed Catchwords: Trees (Disputes Between Neighbours); hedge; obstruction of views; some trees not planted so as to form a hedge; obstruction not severe; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Johnson v Angus [2012] NSWLEC 192 Liddell v Jones [2014] NSWLEC 1183 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Peter John Hellier (First Applicant) Narelle Ann Hellier (Second Applicant) Graham Kent Paver (First Respondent) Jill Eileen Paver (Second Respondent) Representation: Counsel: David Newhouse, solicitor (Applicants) Janine Wilson, solicitor (Respondents)

Solicitors: Newhouse & Arnold Solicitors (Applicants) Baker Love Lawyers (Respondents) File Number(s): 20237 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. Properties facing the lake at Coal Point enjoy peaceful surrounds and water views. Mr and Mrs Paver ('the respondents') bought and occupied one of these properties 27 years ago. Mr and Mrs Hellier ('the applicants') bought and occupied the adjoining property in 1996. Shortly before the Helliers moved in the Pavers planted a row of trees near the common boundary. Since then they have undertaken further plantings to consolidate this hedge ('Hedge 1'), which now extends for a considerable length and contains two species: Lilly Pilly and Photinia. Two trees existed in the vicinity of this hedge prior to the first planting - a Lilly Pilly ('Tree 1') and a Viburnum ('Tree 11'). Closer to the lake is a group of three Cotoneasters that the Helliers say forms another hedge ('Hedge 2'). 2. The Pavers planted the trees in Hedge 1 for privacy in their rear garden. They say that they did not plant the larger Lilly Pilly or the Viburnum and that these trees are not part of the hedge. They also say that they did not plant the Cotoneasters, but value the protection they provide from wind. 3. The Helliers say they had sweeping 120-degree views of the lake from their dwelling when they first moved in; views that are now restricted to 40- or 50-degree views. They say the view loss is caused by trees in both hedges, primarily those in Hedge 1, and to a lesser extent by the three Cotoneasters. Pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') they have applied for the trees to be pruned on an annual basis to a height of 2 metres, which they say will restore their views while maintaining the Pavers' privacy. They say the Viburnum was present when they moved in but suggest that the Pavers planted it. They say the Pavers have planted the hedge trees close to Tree 11, that its foliage is similar to the hedge trees, and that it therefore forms part of Hedge 1. They concede that Tree 1 is not part of Hedge 1. 4. Earlier this year the Pavers pruned some of the taller trees in Hedge 1 down to heights of around 3 metres, whereas earlier they had grown to be more than 5 metres tall.