French & anor v Bendror [2017] NSWLEC 1013

Land and Environment Court New South Wales

Medium Neutral Citation: French & anor v Bendror [2017] NSWLEC 1013 Hearing dates: 11 January 2017 Date of orders: 17 January 2017 Decision date: 17 January 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali & anor [2010] NSWLEC 1334 Deville & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Karam v Meredith [2012] NSWLEC 1114 Mayes v Keene [2016] NSWLEC 1604 McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: John & Maria French (Applicants) Rowena Bendror (Respondent) Representation: Applicants: John and Maria French(Litigants in person) Respondent: Geoff Beveridge (Barrister) File Number(s): 313226 of 2016

Judgment 1. COMMISSIONER: The applicants own a property in Bowral. They have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to 2.5m, and subsequent annual maintenance, of two rows of trees growing on an adjoining property to the north. 2. The orders are sought on the applicants' contention that, amongst other things, the trees severely obstruct sunlight to windows of their dwelling. 3. Apart from orders for pruning, the applicants are seeking reimbursement of all costs and fees, including legal costs, incurred by them in relation to the Class 2 application. 4. In dealing with this matter first, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 5. In regards to the requested height of 2.5m, the applicants were under the misapprehension that 2.5m is the 'legal' height required by the Trees Act. This perception is not uncommon. The height of 2.5m is simply the height at which the trees must be in order to engage the Court's jurisdiction in Part 2A of the Trees Act. 6. The trees in question are seven Cupressus torulosa (Bhutan Cypress) in a row of more than seven Cypress and an adjoining row of seven Magnolia grandiflora 'Little Gem'. The trees are growing along the southern side boundary of the respondent's property.