Penklis & anor v Maley & anor [2016] NSWLEC 1615

Land and Environment Court New South Wales

Medium Neutral Citation: Penklis & anor v Maley & anor [2016] NSWLEC 1615 Hearing dates: 29 August 2016 Date of orders: 20 December 2016 Decision date: 20 December 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; obstruction not severe; slicing of views; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Haindl v Daisch [2011] NSWLEC 1145 Category: Principal judgment Parties: Christine Penklis (First Applicant) George Penklis (Second Applicant) Mark Maley (First Respondent) Karen Maley (Second Respondent) Representation: Counsel: Patrick Holland, Solicitor (Applicants) James Johnson, Barrister (Respondents)

Solicitors: McCullough Robertson Lawyers (Applicants) Woolf Associates (Respondents) File Number(s): 158251 of 2016

Judgment

Background 1. Christine and George Penklis ('the applicants') purchased their Vaucluse property in 2006. From the rear of their dwelling they had views of the harbour, Harbour Bridge, Opera House, CBD and parts of the eastern suburbs such as Double Bay. Their neighbours, Mark and Karen Maley ('the respondents'), enjoyed similar views. Since then both the Penklis dwelling and the Maley dwelling have undergone renovations. As with any development in close proximity to other dwellings, this has involved a balance of maintaining or improving amenity, including access to views, while protecting privacy and minimising overlooking. 2. Concerned that the new deck at the rear of the Penklis dwelling would give rise to overlooking issues, the Maleys planted a row of six Shiny Xylosma (Xylosma congestum) trees ('the hedge') along their northern boundary. 3. The trees have grown to a height where they partly obstruct the Penklises' views. They have applied to the Court, pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the trees to be removed or pruned so as to restore their views. 4. The hearing took place on site, allowing observations of the views, trees and privacy issues. Two experts attended and gave evidence: Ms Catriona Mackenzie, arboriculturist and landscape designer, for the applicants; and Ms Elke Haege, arboriculturist and landscape architect, for the respondents. 5. The six trees were planted along the northern side of the Maleys' deck, between their deck and the common (side) boundary with the Penklises' property. They are all more than 2.5 metres tall. According to s 14A(1) of the Trees Act they are trees to which Part 2A of the Act applies. 6. The Penklises seek orders for the respondents to remove the trees. In the alternative, they seek orders for the trees to be maintained at a maximum height equivalent to a ground floor awning on the respondents' property; or for trees T3-T6 to be maintained at that height and for the two trees at the hedge's western end, T1 and T2, to be removed. They seek orders for any trees replanted here to be maintained at a height no greater than the height of the awning. These are all orders within the Court's jurisdiction at s 14D of the Trees Act. 7. The application filed with the Court claimed the trees obstructed both sunlight and views, however at the hearing the applicant pressed only that part of the application regarding views. 8. According to s 14E(2) of the Trees Act: (2) The Court must not make an order under this Part unless it is satisfied that: (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 applicants argue that the obstruction of a view caused by the hedge is severe and justifies the orders they seek. The respondents argue that the hedge obstructs very little of the applicants' view and that a privacy screen also obstructs the view principally lost. According to s 14F of the Trees Act, I must consider a range of relevant matters in determining this application, including anything else that may be contributing to the view obstruction (s 14F(m)).