Short v Clem Doyle & Anor [2017] NSWLEC 1407

Land and Environment Court New South Wales

Medium Neutral Citation: Short v Clem Doyle & Anor [2017] NSWLEC 1407 Hearing dates: 25 July 2017 Date of orders: 25 July 2017 Decision date: 25 July 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge – obstruction of views; trees to which the Part applies; obstruction not yet severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnston v Angus [2012] NSWLEC 192 Texts Cited: Nil Category: Principal judgment Parties: Allan Short (Applicant) Clem and Annette Doyle (Respondents) Representation: Applicant: Allan Short (Litigant in person) Respondents: Clem and Annette Doyle (Litigants in person) File Number(s): 138693/2017 Publication restriction: No

judgment 1. COMMISSIONER: The applicants have lived at their Tanilba Bay address in the Port Stephens area since the early 1980s and have always enjoyed their water views. They contend that trees planted on the respondents' property obstruct, and or will eventually obstruct, views from their dwelling. 2. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking either the removal or pruning of a number of trees.

The Jurisdiction 1. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged. 2. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies and which are on adjoining land. 3. The first test considers the trees to which Part 2A applies and is found in s 14A(1) which states: (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 1. In Johnston v Angus [2012] NSWLEC 192 Preston CJ provides a detailed analysis of the construction of subsection 14A(1)(a) of the Trees Act. At paragraphs [40]-[43] His Honour considers, amongst other things, the criteria relevant to the determination that the trees the subject of an application form a hedge, and were planted so as to form a hedge. These criteria include proximity, planting arrangement, species, relationship between species if the planting is a mixture of species, and function of the planting. Relevantly at [43], the age is relevant as a tree planted a number of years before/after other trees could not have been planted so as to form a hedge with such trees as they were not in existence. Part 2A does not apply to single trees. 2. So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge". This has been applied from the point of viewing the trees from a respondent's land. 3. The next key test in applications made under Part 2A is found in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 1. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52].