Last week, the Land and Environment Court of New South Wales refused an application under the Trees (Disputes between Neighbours) Act 2006, to remove three hedges from the respondent’s Woodford Bay property. This article looks at the factors that the Court took into account when assessing the view loss experienced by one neighbour against the privacy protection the hedge gave the other.
Last week, the Land and Environment Court of New South Wales refused an application pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006, seeking removal of three nominated hedges from the respondent’s Woodford Bay property.
The onsite hearing considered the obstruction of the applicant’s views by the nominated trees.
The Court considered the view sharing principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140, which is determined by a three-step test:
- Assessment of the impacted views; including whether the views are of water or ‘iconic’ landmarks (i.e., of the Opera House or Harbour Bridge).
- Consideration of the location of obstructed views; views from front and rear boundaries may be more valuable than views from side boundaries.
- Assessment of the extent of the impact for the entirety of the property, not just the view that is affected. Measured on a scale of “qualitatively negligible, minor, moderate, severe or devastating”.
One issue considered by the Court was the application of the principles in Steber v Job [2019] NSWLEC 1308. Ordinarily, the Court can only make orders to remove, remedy or restrain an obstruction of views if that obstruction exists at the time of the hearing. Steber stands for the proposition that the Court may, in circumstances where a hedge has been trimmed prior to a hearing (thus lessening or removing the obstruction), make orders restraining a future obstruction if an applicant can demonstrate that such an obstruction was recently severe. In this case, the respondent had trimmed the hedges prior to the hearing such that the applicant’s purported view obstruction was lessened. Acting Commissioner Douglas distinguished the application of Steber, noting that the cases in which it had been applied concerned fast-growing plants like bamboo. The Acting Commissioner was also not persuaded that the purported obstruction of the applicant’s views prior to the trimming was severe, as was the case in Steber.
The Court accepted the respondent’s position that the desire for reasonable privacy outweighed the applicant’s interest in having any obstruction removed, remedied, or restrained. The application was refused.
Beatty Hughes & Associates (Jennifer Hughes and Joshua Wisken) acted for the successful respondent. The full judgment of Byrne v Davies [2024] NSWLEC 1295, can be found here.