Telfer v Washington [2014] NSWLEC 1127

Land and Environment Court New South Wales

Medium Neutral Citation: Telfer v Washington [2014] NSWLEC 1127 Hearing dates: 25 June 2014 Decision date: 25 June 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld in part: see orders at paragraph (17) Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Johnson v Angus [2012] NSWLEC 192 Wisdom v Payne [2011] NSWLEC 1012 Category: Principal judgment Parties: APPLICANT Alison Telfer (in person)

RESPONDENTS Robert and Margaret Washington (in person) File Number(s): 20217 of 2014

Judgment

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

The application 1The same trees that provide shade, privacy and habitat can sometimes obstruct sought-after views or solar access. Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) provides some means of dealing with this issue when it arises between neighbours. 2Ms Telfer has owned her Speers Point property since 2002, although it has been in her family since the dwelling was constructed. She has applied to the Court under Part 2A of the Act seeking orders for neighbouring trees to be pruned on an ongoing basis to restore and maintain views that she previously enjoyed from her dwelling. 3Mr and Mrs Washington, the owners of the neighbouring property on which those trees grow, value the trees for the shade, privacy and habitat they provide and do not wish to bear the onus of ongoing pruning. 4The Court's jurisdiction to make orders under this part of the Act has been discussed in numerous judgments. Of particular relevance is Preston CJ's judgment in Johnson v Angus [2012] NSWLEC 192, where the meanings of terms such as 'planted', 'so as to form', and 'hedge' are discussed. While some terms are clear within the Act (for instance, 'planted'), others, such as what exactly comprises a 'hedge', may be open to some degree of interpretation. Moore SC and Hewitt AC were satisfied in Wisdom v Payne [2011] NSWLEC 1012 at (45) that this term meant that "...there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered." They stated that although there does not have to be one single, perfectly straight line of trees, the impression given by the planting must be one that would be called a hedge, according to the word's meaning in common language. 5Preston CJ in Johnson said that the trees must have been planted with the intent to form a hedge and that they must still form a hedge in the present.