Baker Love recently acted for owners of a Lake Macquarie waterfront residential property in Land and Environment Court proceedings that exemplifies the tension between neighbours when it comes to water views versus garden design and privacy, writes litigation expert JANINE WILSON.
Over a long period of time, our clients had planted evergreen shrubs and cultivated them as a hedge along the fence line adjoining their neighbours. The purpose of the hedge was to provide privacy in their backyard, and to form part of an overall garden design. There were also two large trees in the backyard of our client’s property that were near to the hedge, but pre-existed their occupation of the property.
One of our client’s neighbours had made a number of complaints regarding the presence of the hedge and trimmed parts of it, which they asserted reached into their property from time to time. The relationship between the neighbours deteriorated. A mediation facilitated by the Community Justice Centre did not resolve the dispute.
The neighbour commenced proceedings in the Land and Environment Court against our client, alleging that the hedge caused a severe obstruction of views and sunlight into the neighbour’s property. The neighbour relied on section 14 B of the Trees (Disputes Between Neighbours) Act 2006 and sought an order that the hedge be trimmed and annually maintained at a height of two metres.
Our clients admitted that the evergreen shrubs were planted to form a hedge, within the meaning of the Trees Act, and that at the time of commencement of legal proceedings the height of the hedge varied from 2 metres to 3.3 metres. These factors brought the hedge within the meaning of the Trees Act and subject to the jurisdiction of the Court.
However, they had not planted the two large trees close to the hedge. Accordingly, we submitted that the Court had no power under the Trees Act to make orders in respect of those two trees.
The Court agreed. The judgment noted that solitary trees do not become part of a hedge merely by being surrounded by the hedge.
An obstruction is only actionable under the Trees Act if it is severe. To allow that assessment to be made, the hearing was held on-site before a Commissioner of Court. The Court found that while some parts of the view were obstructed, the neighbours still enjoyed extensive water views. The Court noted that it is the overall view that must be considered, not the extent of obstruction of one small part of it.
The Court noted that the main cause of the obstruction was the two large trees, over which it had no jurisdiction, and that the remaining impact was not severe. The neighbour’s claim was therefore dismissed by the Court.
