Hynd v Owners Corporation SP34063 [2018] NSWLEC 1438

Land and Environment Court New South Wales

Medium Neutral Citation: Hynd v Owners Corporation SP34063 [2018] NSWLEC 1438 Hearing dates: 26 July 2018 Date of orders: 26 July 2018 Decision date: 26 July 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed. Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees do not constitute a hedge; obstruction not severe Legislation Cited: Trees (Dispute Between Neighbours) Act 2006 Cases Cited: Alameddine v Jones [2013] NSWLEC 1021 Ball v Bahramali [2010] NSWLEC 1334 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hainl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 McLaren v Lewis [2011] NSWLEC 1170 Tenacity Consulting v Warringah Shire Council [2014] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wisdom and Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: David James Hynd (Applicant) Owners Corporation SP34063 (Respondent) Representation: Solicitors: B Woolf, Woolf Associates (Respondent)

Other: Applicant (self-represented) File Number(s): 2018/143749 Publication restriction: No

Judgment This decision was given orally and has been revised and edited prior to publication. 1. ACTING COMMISSIONER: This is an application made under s 14B of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act) by the owner of a property in Manly against the owners of trees growing on an adjoining property. 2. The applicant, Mr Hynd, has applied for orders seeking the pruning of five Lilly Pilly trees to "a height that does not block views from my unit" and the annual pruning "to maintain a height that does not block views from my unit." He also seeks removal of the three Kentia Palms. The basis of the application is that the trees constitute a 'hedge' and severely obstruct views from his dwelling. 3. Since December 1998, Mr Hynd has lived in an apartment at his current address and since August 2013, he has owned and occupied the apartment subject to this application. Evidence relating to the period prior to August 2013 is therefore not relevant or admissible. In his application claim form, Mr Hynd notes that views of Sydney Harbour through three windows and two glass doors, have been restricted by the respondent's 'hedge' and each "view will be severely obstructed if not completely blocked if the Lily Pilly continues to increase in height". 4. The applicant contends in verbal evidence that while his potential view includes Little Manly Beach, the Quarantine Station, South Head, Middle Head and Parsley Bay, more than 50% of the total view, and 80% of water views have been obstructed by the growth of the applicant's hedge. The information in the first four columns of the table below was supplied in the application, and confirmed at the site inspection at the commencement of the hearing. I have added the fifth and six columns to include data I collected at this hearing. Identification Species (Common name) Distance from northern corner of respondent's property (m) Approximate distance from rear fence of respondent's property (m) Approximate height (m) Approximate trunk diameter at breast height (DBH) (mm) L1 Lilly Pilly 2.0 4 9 400 L2 Lilly Pilly 3.3 0.8 7-8 200 L3 Lilly Pilly 5.0 1.4 7-8 300 P1 Kentia palm 7.6 1.2 9 N/A P2 Kentia palm 8.9 2.4 7 N/A L4 Lilly Pilly 10.7 2.7 8-9 300 P3 Kentia palm 14.4 2.9 8 N/A L5 Lilly Pilly 14.5 3.0 8 300