Yeates & anor v Goff [2011] NSWLEC 1338

Land and Environment Court New South Wales

Medium Neutral Citation: Yeates & anor v Goff [2011] NSWLEC 1338 Hearing dates: 28 November 2011 Decision date: 28 November 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; bamboo; obstruction of views; consent orders sought; no severe obstruction of views found; no jurisdiction to agree to consent orders Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007 Cases Cited: Breen & Anor v Caronna & Anor [2008] NSWLEC 293 Haindl v Daisch [2011] NSWLEC 1145 Ball v Bahramali & Anor [2010] NSWLEC 1334 Tenacity Consulting v Warringah [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Category: Principal judgment Parties: M & J Yeates (Applicants) M Goff (Respondent) Representation: Applicants: Mr P Zacharotos (Solicitor) Respondent: Ms M Taylor (Solicitor) Applicants: Wight & Strickland Respondent: Bartier Perry File Number(s): 20489 of 2011

Judgment 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 North Curl Curl against the owner of trees growing on an adjoining property. 2The application seeks orders for the removal of bamboo and a row of Ficus benjamina growing on the respondent's property along the common boundary with the applicants. These orders are sought on the basis that the trees severely obstruct views from the applicants' dwelling. 3There are two clumps of bamboo, one clump, noted as T5 on the plan in the application, is adjacent to the applicants' front balcony/ deck along part of the northern boundary of the respondent's property; the other, T6, is growing along the eastern boundary of the respondent's property. 4Since the making of the application, the Ficus benjamina have been pruned and their removal is no longer pressed. The parties have also agreed to Consent Orders for the pruning of the bamboo, twice a year, to the height of the top handrail of the applicants' front balcony. 5While the Court has the power under s 14D(1)(b) of Part 2A of the Act to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of any view from a dwelling situated on the applicant's land, including orders agreed to by the parties, it must first satisfy itself that the relevant jurisdictional tests are met. This is clarified by Sheahan J in Breen & Anor v Caronna & Anor [2008] NSWLEC 293 at [6] in regards to consent orders sought in an application made under Part 2 of the Act. 6 The Chief Judge has assigned Commissioner Moore and Acting Commissioner Thyer to deal with this case, including those serious considerations. The Commissioners are part-heard. They certainly can make consent orders to dispose of a tree dispute, but they must first be satisfied of the matters in s.10, and must consider also the matters in s.12, of the Tree Disputes Act . These sections are comprehensive in their terms, and simply must be observed before orders are made. 6Therefore when parties seek consent orders, it is the Court's practice to commence the hearing on site so that the relevant jurisdictional matters can be determined. In applications made pursuant to Part 2A, the relevant jurisdictional tests are s 14A, s 14C and s 14E. Section 14C relates to notice and is not in issue.