Marshall v Kremnizer [2017] NSWLEC 1029

Land and Environment Court New South Wales

Medium Neutral Citation: Marshall v Kremnizer [2017] NSWLEC 1029 Hearing dates: 23 January 2017 Date of orders: 30 January 2017 Decision date: 30 January 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees not on adjoining land; obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Awad v Hardie (No 2) [2010] NSWLEC 1258 Cavalier v Young [2011] NSWLEC 1152 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 Murray v Shoebridge [2007] NSWLEC 785 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 152 Robson v Leischke [2008] NSWLEC 152 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Miranda Marshall (Applicant) Ann Kremnizer (Respondent) Representation: Applicant: Mr John Comino (Solicitor) Respondent: Mr Robert Kremnizer (Agent)

Solicitors: Applicant: Comino Prassas Solicitors File Number(s): 336279 of 2016

Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the pruning of a row of Cupressus torulosa (Bhutan Cypress) growing on the respondent's property. The orders are sought on the applicant's contention that the trees are severely obstructing views of the Harbour from her Bellevue Hill apartment. 2. Section 14 B states: An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, If the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land [emphasis added]. 1. The applicant has filed two Class 2 applications under s 14B of the Trees Act. The Kremnizer property adjoins the Markovits property, the subject of matter 336280 of 2016. These properties are downslope of, and to the northeast of, the applicant's property. 2. Across the rear of both lots is a tennis court, half of which is constructed on the Kremnizer property and half on the Mankovits property. The position of the net is close to the common boundary. The neighbours share the use of the tennis court. 3. Below a retaining wall on the north-eastern side of the tennis court is the row of Bhutan Cypress which runs across the two properties. According to Mr Kremnizer, the trees were planted about 35 years ago. Trees 1-17 are on the Markovits property and trees 18-27 are located on the Kremnizer property. It is possible that tree 18 is on the boundary however there is no recent survey to confirm this. 4. At the Court's request, Mr Kremnizer provided the Court and the applicant with a copy of a 1980 survey of the property and the accompanying Surveyor's Certificate'. Although the tennis court is not shown, the boundaries of the lot have not changed. [I have taken the liberty of making this Exhibit 1 in the proceedings.] The applicant's solicitor, Mr Comino, was invited to make written submissions. 5. Mr Comino subsequently provided detailed written submissions as to why the Kremnizer property should be considered as adjoining the applicant's land. The submissions are lengthy and detailed and refer to a number of findings in other matters, including a number of tree matters. 6. In summary, Mr Comino submits that the Trees Act does not define "adjoining land" and does not use the word "boundary" or state there must be a common boundary between the parties' properties. In particular he cites P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 152 [the very first case determined under the Trees Act], which in turn cites Hornsby Shire Council v Malcolm (1986) 60 LGRA 429. In these and other matters, Mr Comino submits that the word "adjoining" has a wider meaning and does not have to imply immediately adjoining or abutting. He also cites my decisions in Cavalier v Young [2011] NSWLEC 1152 at [4]-[5] where I held that the sharing of a corner post was sufficient connectivity to meet the test of adjoining land. 7. Mr Comino submits that the tennis court at the rear of both properties was constructed by Mr Markovits pursuant to a Building Application obtained in 1984. He contends that while there is no formal legal arrangement recorded on the title of either lot, the tennis court is jointly used and enjoyed by the Kremnizer and Markovits families and therefore is in common ownership. He cites Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [157] where His Honour considers that the concept of 'adjoining land' can include properties that are separated by 'other land'. Mr Comino submits that the tennis court could constitute 'other land'. In this way, he maintains that the Kremnizer land is adjoining land for the purpose of the Trees Act.