Blau v Levi [2010] NSWLEC 1371

Land and Environment Court of New South Wales

CITATION : Blau v Levi [2010] NSWLEC 1371

APPLICANT A Blau PARTIES : RESPONDENT C Levi

FILE NUMBER(S) : 20641 of 2010

CORAM: Moore SC - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- What constitutes a hedge; plants in pots that consituted a hedge at time of application moved prior to hearing; moved plants no longer a hedge

Trees (Disputes Between Neighbours) Act 2006 LEGISLATION CITED: Antisocial Behaviour Act 2003 [UK] Imperial Acts Application Act 1969 Interpretation Act 1987

CASES CITED: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429

DATES OF HEARING: 14 bDecember 2010

EX TEMPORE JUDGMENT DATE : 14 December 2010

APPLICANT Mr M Seymour, barrister INSTRUCTED BY Michael Rogers & Co

LEGAL REPRESENTATIVES: RESPONDENT Mr G Christmas, solicitor Apex Planning and Environmental Law

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC FAKES C 14 December 2010 10/20641 Blau v Levi JUDGMENT

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

1 SENIOR COMMISSIONER : These proceedings concern an application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerning a number of elements of vegetation growing on the respondent's property in Rose Bay. 2 During the course of the view of the properties, a number of matters arose that needed to be dealt with, at the commencement of our consideration of these matters, to clarify the matters that were the subject of the application. A number of preliminary rulings were given by us during the course of the view regarding a number of applications for leave to amend; some granted, some refused. 3 In order to clarify that with which we are dealing, we should outline those matters. First, the original application lodged by the applicant proposed orders with respect to some plantings of bamboo at the rear of the respondent's property. That bamboo, it transpires, is located on the common property of the strata plan within which the respondent's apartment is located and, as a consequence – there being no application to the Court to which that body corporate is a respondent – it is necessary for us to dismiss that element of the application. 4 The second vegetation element in the application is that which is referred on p 23 of the bundle comprising the applicant's materials. This vegetation is what was described as a Buxus hedge approximately 2 metres high and growing rapidly. That hedge, located at natural ground level on a portion of courtyard area at a lower level of the respondent's property is, in fact, a Murraya hedge that is in excess of 2.5 metres high. It is, for the purposes of s 14A(1)(a) and (b) of the Trees Act, undoubtedly two or more trees planted in the ground forming a hedge and rising to a height of at least 2.5 metres above existing ground level. That element of the necessary jurisdictional tests with which we must deal are satisfied.