Bowen v Martin [2011] NSWLEC 1195

Land and Environment Court New South Wales

Medium Neutral Citation: Bowen v Martin [2011] NSWLEC 1195 Hearing dates: 12 July 2011 Decision date: 12 July 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; no jurisdiction over some hedges; no severe obstruction of views found Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012 McLaren v Lewis [2011] NSWLEC 1170 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Mr J Bowden (Applicant) Mrs C Bowden (Applicant) Ms R Martin (Respondent) Representation: Applicants: J & C Bowden (Litigants in person) Respondent: R Martin (Litigant in person) File Number(s): 20249 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Dunbogan against the owner of trees growing on an adjoining property. 2The applicants are seeking orders to limit the height to 2.5m of all trees and hedges on the side and rear boundaries of the respondent's property that have blocked, or may in the future block, their view. 3The application lists 12 'trees' comprised of groups of trees and two single trees, as well as 5 viewing points. 4The respondent has proposed alternative orders for two of the hedges. She suggests that Hedge 1 could be pruned to 3.5m and maintained at a height of 4m, but only if the trees are capable of being pruned to this height. She also suggests that the southern 3m of hedge 3 could be reduced in order to extend the applicants' view. However, the respondent does not wish to reduce the height of hedge 2 and the remainder of hedge 3 as she values the trees for the privacy they afford her property. 5The application is made pursuant to s 14B(b) of the Trees Act. This enables an owner of a property to apply to the Court to remedy, restrain or prevent the severe obstruction of any view from a dwelling on the applicant's land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. There is no dispute that the trees subject to the application are on adjoining land. 6Part 14A states that Part 2A applies to groups of two or more trees, planted so as to form a hedge, and which rise to a height of at least 2.5m above ground level. 7Therefore, given the number of trees/hedges nominated by the applicants, the first jurisdictional test is to determine whether the trees, for which the applicants seek orders, are a hedge for the purpose of the Act. 8The hedges are described as follows. The names in brackets are the species incorrectly identified in the application. Tree/ Hedge Number Species Number of trees Approximate height (m) 1 Cupaniopsis sp / Tuckeroo 11 6 2 Metrosideros sp/NZ Christmas Bush 7 4.5 3 Hibiscus tiliaceous 13 4 4 Casuarina equisetifolia 12 1.2 5 Hibiscus 7 1.5 6 Cupaniopsis 1 3 7 Alectryon coronaceous 4 <2.5 (Hibiscus) 8 Oleander Were 14 now zero - 9 Alectryon coronaceous 4 <2.5 (Hibiscus) 10 Hibiscus 4 <2.5 11 Hibiscus 9 <2.5 12 Olea europaea 1 3 (Melaleuca)