Storer v Kinnaird [2017] NSWLEC 1012

Land and Environment Court New South Wales

Medium Neutral Citation: Storer v Kinnaird [2017] NSWLEC 1012 Hearing dates: 12 January 2017 Date of orders: 17 January 2017 Decision date: 17 January 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees not trees to which Part 2A applies Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Johnson v Angus [2012] NSWLEC 192 Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Damien Storer (Applicant) Brad Kinnaird (Respondent) Representation: Applicant: Keith Chamberlain (Solicitor) Respondent: Brad Kinnaird (Litigant in person)

Solicitors: Applicant: CH Legal & Conveyancing File Number(s): 340065 of 2016

Judgment 1. COMMISSIONER: The applicant purchased his Bonny Hills property in 2005. He contends that at that time he had uninterrupted views from the living areas of his dwelling of Lighthouse Beach to the north-northwest. The applicant submits that trees growing at the rear of the respondent's property now severely obstruct those views. 2. As a consequence, the applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the trees to 4m and maintenance pruning every three months. The work is to be paid for by the respondent. In the alternative, the applicant seeks orders for the removal of the trees at the respondent's expense. 3. The respondent opposes the imposition of these orders on the basis that the trees were well-established when he and his wife purchased the property in about 2011; they value the trees for their shade and for the wildlife they support. 4. The on-site hearing commenced with an inspection of the trees from the respondent's property. 5. The applicant contends that he and another adjoining neighbour have always considered the trees to be a hedge because when seen from their properties, the canopies intermingle. The applicant stated on site that he and that other neighbour had permission from the previous owner of the respondent's property to trim the trees to the height of the guttering of the dwelling on the respondent's land. In his opinion the respondent had also agreed for the trees to be pruned. The respondent stated that he had agreed to a small amount of pruning but stopped all further pruning after he considered what had been removed to be far in excess of the amount agreed. He also stated that in his opinion, the trees were not a hedge. 6. After viewing the trees, I made a preliminary finding that the trees may not be trees to which the Part applies but to make full use of the time taken to travel to the site and to fully appreciate the applicant's concerns, the impact of the trees on the applicant's views would be observed. 7. The applicant's property is upslope and to the south of the respondent's property. 8. The nominated viewing points are V1 – Lounge room; V2 – adjoining verandah and outdoor entertainment area; V3/V4/ V5– family/dining/kitchen. The views in contention are views to the north and NNW of Rainbow Beach including the land/water interface, and the distant escarpment the northwest. 9. A photograph taken in January 2013 from V2 (after pruning of the trees) shows the views potentially available from the rear living areas of the applicant's dwelling. The roof of the respondent's dwelling partially obstructs the views of the beach. 10. During the hearing I made the following observations. The applicant has views to the east/ NE of the ocean which are unaffected by the respondent's trees. T1 partially obstructs views to the north of Rainbow Beach from V2, V3, V4 and V5 (on the north-eastern side of the respondent's roof). The other plants severely obstruct all nominated views to the north-western side of the respondent's roof from V1 and V2. 11. The applicant has recently constructed a roof-top viewing platform to take advantage of the panoramic views of the beach and ocean. This is unaffected by the trees.