Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

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

1. COMMISSIONER: Mr Martyn ('the Applicant') applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Ms Stuart (the Respondent) to prune the hedge located between the properties. The trees are located close to the Respondent's rear and side boundaries of 48 Lake Street Merimbula. The Applicant owns 26 Wyeebo Street Merimbula, and shares a rear boundary with the Respondent.

2. The Respondent enjoys the privacy the hedge provides for the rear yard and dwelling and seeks to maintain the hedge at 3.5 metres above ground level. The hedge is mainly comprised of Pittosporum trees that are mature and have previously reached a height of generally between 3 and 5 metres.

3. The Applicant submits that hedge is severely obstructing the views to the south from his property and seeks orders for regular pruning.

4. The application is made pursuant to s 14B Pt 2A of the Trees Act.

Jurisdictional requirements - Part 2A

5. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

6. The first test is s 14A(1), that is, are the trees planted along the southern boundary of the Respondent's rear yard, a hedge for the purposes of the Act? Section 14A(1) states:

14A Application of Part

(1) This Part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

7. The trees were planted more than 10 years ago next to each other forming a hedge, now reach a height of about 3 metres in height, s 14A(1) is satisfied. The trees continue to grow and increase in height.

8. The next step is to assess the severity of the obstruction of all or any of the views from the Applicants' dwelling as a consequence of any or all of the trees in the hedges. Section 14E(2)(a)(ii) states:

14E Matters of which Court must be satisfied before making an order

...

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

...

(ii) are severely obstructing a view from a dwelling situated on the applicant's land.

9. The Applicant's residence is upslope from that of the Respondent. The dwelling has rear living areas designed to capitalise on views towards the ocean to the south.

10. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity').

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1981101e2beccf760875722a)

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