Akerman v Neal [2016] NSWLEC 1298

Land and Environment Court New South Wales

Medium Neutral Citation: Akerman v Neal [2016] NSWLEC 1298 Hearing dates: 1 July 2016 Date of orders: 01 July 2016 Decision date: 01 July 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; privacy; jurisdiction; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009) Cases Cited: Devile & anor v Frith & anor [2014] NSWLEC 1002 Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: R Akerman (Applicant) G Neal (Respondent) Representation: R Akerman (Litigant in person) J Wilson (Solicitor for the respondent) File Number(s): 2016/154058 (Formerly 2016/20175)

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning 8 xCupressocyparis leylandii (Leyland Cypress) trees located on a property at Bolton Point, Lake Macquarie. 2. The 8 Cypress trees are located along the rear (north/north eastern) boundary of the respondent's property adjacent to the common boundary fence with the applicant's property. 3. The trees are identified as T1 – T8 in the application and are planted approximately 1.5 metres apart except for T1 which is approximately 3 metres from T2. The trees are currently slightly taller than 5 metres and the width of each of the trees tapers to a narrow point at the apex. Even at the widest point at the base the foliage has not as yet joined together between the trees. 4. The applicant is seeking orders that the 8 trees be trimmed to a maximum height of 4 metres from ground level and that they be maintained at that height. 5. The applicant contends that the trees were planted in 2011 and that he purchased his land in 2008 and occupied the new house in 2010. 6. The respondent disagrees with the contended planting date and stated that he planted the trees in 2010 as he was concerned that his rear yard would be overlooked once the applicant's 2 storey dwelling was occupied. 7. The orders are sought as the applicant claims that views of Lake Macquarie, the foreshore and Toronto on the opposite side of the lake are now severely obstructed by the Cypress trees. In the application 4 viewpoints (V1 – V4) have been nominated as being obstructed. 8. Ms Wilson, on behalf of the respondent, contends that the impact of the trees on the views are minor or moderate at worst. 9. The respondent stated that he intends to maintain the Cypress trees at the height seen at the hearing which is just greater than 5 metres. As previously stated the applicant seeks orders that the trees be maintained at a maximum height of 4 metres so that the views to the foreshore and across the lake are restored to the extent that existed when he purchased the land and occupied his newly constructed dwelling. 10. The applicant contends that there was an unobstructed view of the foreshore, boats, lake in general and the Toronto shoreline opposite prior to the planting and subsequent growth of the trees. 11. The applicant is concerned that the trees will grow much taller and wider increasing the obstruction of the views. 12. Both parties agreed that approximately 700mm of the narrow 'wispy' growth had recently been pruned from the top of each tree. 13. I noted, and made the point at the hearing, that if the trees were maintained at a height of 4 metres from the ground level on the applicant's property this would provide privacy to the rear yard of the respondent's property. Maintaining the trees at a height of 4 metres would also restore the views for the applicant much as they were at the time of occupation.