Land and Environment Court New South Wales Medium Neutral Citation: Sendro v Goodings [2018] NSWLEC 1454 Hearing dates: 20 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – obstruction of views – whether the trees form a hedge Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Johnson v Angus [2012] NSWLEC 192 Texts Cited: Nil Category: Principal judgment Parties: Thomas Sendro (Applicant) Cathy Goodings (First Respondent) Simon Goodings (Second Respondent) Representation: T Sendro, litigant in person (Applicant) C and S Goodings, litigants in person (Respondents) File Number(s): 2018/129394 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Thomas Sendro ('the applicant') enjoys harbour views from several levels of his Bellevue Hill dwelling. Downslope from his property, trees grow on the property owned by Cathy and Simon Goodings ('the respondents'). Mr Sendro unsuccessfully attempted to persuade the Goodings to remove or prune the trees so that they do not obstruct his views. He applied to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking removal of a dead tree (species unknown), removal of an African Olive tree and reduction pruning of an Illawarra Flame Tree. 2. The Goodings had removed the dead tree by the time of the onsite hearing. Do the trees form a hedge? 1. The Trees Act applies only to certain trees, described at s 14A: 14A Application of Part (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). (2) Despite section 4, this Part does not apply to trees situated on Crown land. 1. In Johnson v Angus [2012] NSWLEC 192 at [27], [28], Preston CJ shed further light on the wording used in s 14A(1)(a): 27 I return to my earlier observation that the phrase 'trees that are planted' is in the simple present tense. The simple present tense can be used to indicate that a fact or state of affairs was true before, is true now and will be true in the future; that an action happens all the time or habitually, in the past, present or future; or to make generalisations about people or things. 28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present. 1. The Goodings have owned their property since 1996, at which time the trees were already growing in the garden. They say the trees do not form a hedge. 2. The three trees (including the stump of the dead tree, now removed) are not at regular spacings and are of three different species. Only two trees remain. Mr Sendro argues they are planted in a linear fashion. This would be true for any two trees. There is no evidence that the trees were planted with the purpose of forming a hedge. While this is often the situation in matters under Part 2A of the Trees Act, observations can satisfy the Court that there was intent to establish a hedge at the time of planting. In this case, there is nothing about the planting of these three trees to suggest such intent. I am not satisfied that these are trees to which Part 2A applies, so I cannot make any orders. 3. I heard Mr Sendro's submissions regarding the extent of his view obstruction and the weed status of the African Olive. However as I find Part 2A of the Trees Act does not apply to these trees, I do not need to consider those matters here. Conclusion 1. As a result of the foregoing, the application is dismissed. ____________________________ D Galwey Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2018