Catlin v King & anor [2016] NSWLEC 1603

Land and Environment Court New South Wales

Medium Neutral Citation: Catlin v King & anor [2016] NSWLEC 1603 Hearing dates: 13 December 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees not 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 Johnston v Angus [2012] NSWLEC 192 Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Denis Catlin (Applicant) Catherine King (First Respondent) Trevor King (Second Respondent) Representation: Applicant: Mr David Fryatt (Solicitor) Respondents: Mr Richard Barraclough (Solicitor)

Solicitors: Applicant: Stacks Law Firm Respondent: Barraclough Jones & Associates File Number(s): 254789 of 2016

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant, Mr Catlin, owns a property in Hallidays Point. He contends that 15 trees growing on Ms King's (the first respondent) property severely obstruct views from his dwelling. 2. Consequently Mr Catlin has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and maintenance of the trees to 2.5m and removal of all palms. 3. Ms King rejects this proposition on a number of grounds including jurisdiction, reasonableness of the proposed orders and the nature and value of the garden. 4. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. 5. The first of these is whether the trees are trees to which the Part applies. 6. Section 14A(1) states that Part 2A applies only 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 natural ground level. 7. There are 15 trees nominated in the application claim form. While the species identification in the claim form is inaccurate, the relative location of the trees on the diagram/marked-up aerial photograph in the claim form denotes the relevant trees. There are more trees in the respondents' backyard than nominated in the application. 8. The parties differ in their recollection of when the trees were planted. 9. Table 1 below provides the list of trees, the approximate planting dates suggested by each party, and approximate spacing between trees. Table 1 – contested trees, approximate planting dates, spacing Tree number Species (as identified on site) Planting date – Planting date - respondent Approx. spacing from previous tree (m) Applicant (from claim form) 1 Callistemon sp Pre-1999 1993 - 2 Melaleuca sp Pre-1999 1993 2 3 Callistemon salignus Pre-1999 1993 5 4 Strelitzia sp 2014 2010 2-3 5 Acer negundo 2007 2006 4 6 Golden Cane Palm 2013 2011 5+ 7 Bangalow Palm 2005 2005 1 8 Callistemon sp Pre-1999 1993 4.5 9 Tibouchina sp 2005 1994 4 10 Callistemon sp 2005 1993 1.5 11 Acmena 2005 Removed 2016 12 Callistemon sp Pre-1999 2000 3.5 13 Bangalow Palm 2010 2005 4 14 Acmena sp 2005 2007 1.5 15 Cocos Palm 2010 2004 1