Marshall v Markovits & anor [2017] NSWLEC 1030

Land and Environment Court New South Wales

Medium Neutral Citation: Marshall v Markovits & anor [2017] NSWLEC 1030 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; obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Miranda Marshall (Applicant) Shmuel & Dweire Markovits (Respondents) Representation: Applicant: Mr John Comino (Solicitor) Respondents: Mr S and Mrs D Markovits (Litigants in person)

Solicitors: Applicant: Comino Prassas Solicitors File Number(s): 336280 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 and their biennial maintenance. The orders are sought on the applicant's contention that the trees are severely obstructing views from her Bellevue Hill apartment. 2. The applicant has filed two Class 2 applications under s 14B of the Trees Act. The Markovits property adjoins the Kremnizer property, the subject of matter 336279 of 2016. These properties are downslope of, and to the northeast of, the applicant's property. The Markovits property is to the southeast of the Kremnizer property. 3. The Markovits application concerns trees 1-17. These are the eastern end of a row of Bhutan Cypress planted about 35 years ago by the neighbour, Mr Kremnizer, across the two properties on the lower side of a tennis court which has been built across the rear of the two lots. Only the Markovits property shares a common boundary with the applicant's land. 4. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged. 5. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and do they rise to a height of at least 2.5m? 6. While it was stated during the hearing that the intent of the planting was not necessarily to form a hedge, I am satisfied that the arrangement, spacing and general appearance of the row of trees is such that anyone viewing the trees would perceive them as forming a hedge. The trees range in height from 9-11m. Therefore the trees are trees to which the Part applies. 7. The key test in applications made under Part 2A is found in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (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 use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. 2. As Part 2A does not create a right to a view which was not available when an applicant purchased their property, it is necessary to establish the extent of the available view at that time (see McDougall v Philip [2011] NSWLEC 1280 at [19]-[25]).