Golchin v Turner [2013] NSWLEC 1138

Land and Environment Court New South Wales

Medium Neutral Citation: Golchin v Turner [2013] NSWLEC 1138 Hearing dates: 24 July 2013 Decision date: 30 July 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees to which Part 2A applies Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Mr A Golchin (First Applicant) Ms L Golchin (Second Applicant) Mr B Turner (Respondent) Representation: Applicant: Mr S Brockwell (Barrister) Respondent: Mr G Christmas (Solicitor) File Number(s): 20283 of 2013

Judgment 1COMMISSIONER: The applicants in these proceedings contend that enjoyable views of the Sydney Harbour Bridge, the Opera House, Sydney Harbour, North Sydney skyline, district views of Vaucluse and the land/water interface near Clifton Gardens and Georges Heights are severely obstructed by trees growing on the respondent's property. 2The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders requiring the reduction of the trees to a height of 4.0 metres with subsequent maintenance at 4.5m and a reduction in width of nominated trees to 1.5m. These works are to be carried out by the respondent and his cost, or alternatively by the applicants at the respondent's cost. 3During the hearing, the application was amended to alter the pruning height to 4.5m with subsequent maintenance at 5.0m. 4The applicants are also seeking orders for the payment of legal costs and expert's fees. In regards to this element of the application, Commissioners do not have the jurisdiction to award such costs. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or the Registrar. 5The respondent disputes the severity of the impact of the trees on the applicants' views. However, should the Court determine that the impact is severe, the respondent's position is that the trees should be pruned by the respondent at the applicants' expense. 6In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the trees the subject of the application.