Abela v Hammond [2019] NSWLEC 1160

Land and Environment Court New South Wales

Medium Neutral Citation: Abela v Hammond [2019] NSWLEC 1160 Hearing dates: 4 April 2019 Date of orders: 04 April 2019 Decision date: 04 April 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS):hedges – whether the trees are planted so as to form a hedge – obstruction of views – whether the obstruction is severe – agreement between neighbours Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Category: Principal judgment Parties: Beverly Abela (First Applicant) Joseph Abela (Second Applicant) Roger Hammond (First Respondent) Simone Hammond (Second Respondent) Representation: A Abela, agent (Applicants) S Hammond, litigant in person (Respondents) File Number(s): 2018/372813 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. It is understandable that residential development is concentrated along our picturesque coastline, where we live often cheek by jowl with our neighbours, whose desires for privacy, views, amenity and enjoyment might conflict with our own. 2. Prior to Roger and Simone Hammond ('the respondents') buying their Boomerang Beach property, the owners of that property grew banksias and paperbarks ('the trees') in their front garden. Their neighbours, Beverly and Joseph Abela ('the applicants') say they had an agreement allowing them to enter the property to prune the trees. Without pruning, these trees would grow up into the Abelas' northward views of Boomerang Beach and Charlotte Head. 3. The Hammonds are willing to prune the trees but want some control over how the trees are pruned and don't want the Abelas entering their property. 4. The Abelas applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for pruning the trees to fence height and maintaining them at that height. At the onsite hearing they clarified that they would accept pruning the trees a little below the height of the gutter along the lower roof at the front of the Hammonds' dwelling, with the pruning done once or twice annually by a professional contractor, the costs being shared equally with the Hammonds. 5. The Hammonds proposed pruning to the same height, once a year by a professional contractor engaged by them, with the costs paid by the Abelas or shared equally with them.