ABC v XYZ

[2022] NSWLEC 1500

Land and Environment Court

New South Wales

Case Name:	ABC v XYZ
Medium Neutral Citation:	[2022] NSWLEC 1500
Hearing Date(s):	29 November 2021
Date of Orders:	16 September 2022
Decision Date:	16 September 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is refused.  (2) The exhibits are returned, other than Exhibit A, which is retained.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether a tree is on adjoining land – whether the obstruction is severe – application refused
Legislation Cited:	Interpretation Act 1987, s 8 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 4, 14A, 14B, 14D, 14E, 14F
Cases Cited:	Dive v Lin and Liu [2017] NSWLEC 153 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	ABC (Applicant) XYZ (Respondent)
Representation:	Counsel: L Sims (Applicant) L Nurpuri (Respondent) Solicitors: Not published
File Number(s):	2021/236889
Publication Restriction:	Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders the non-publication of the names and addresses of the parties.

Judgment

Background to the application

1. Prior to the final hearing in these proceedings, the Applicant applied for, and was granted, a suppression order. Throughout this judgment the Applicant is referred to as ABC and the Respondent is referred to as XYZ.

2. The Applicant’s property is across the street from, and higher than, the Respondent’s property. The Respondent’s property is between the Applicant’s property and the Sydney CBD, the Opera House and the Harbour Bridge.

3. The Application includes five trees (T1–T5).

• T1 is an umbrella tree (Heptapleurum actinophyllum) planted close to the Respondent’s dwelling, several metres from the Respondent’s southern boundary.

• T2 is an Argyle apple (Eucalyptus cinerea) on the property to the Respondent’s south, close to their common boundary.

• Trees T3 and T4 are lilly pillies (Syzygium sp.) on the Respondent’s property, close to their southern boundary.

• T5, unidentified, grows on the Respondent’s property also close to their southern boundary.

1. The history between the parties, extending back some years, includes: the Applicant’s objections to development of the Respondent’s property; applications for consent to prune T2 made by the Applicant; the Respondent’s refusal to allow pruning of T2 over their property; and correspondence relating to the Respondent’s trees obstructing the Applicant’s views.

2. Pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the Applicant has applied for orders, which I summarise here:

   (1)Within 30 days of the date of these orders, the Respondent is to engage and pay for a suitably qualified arborist to remove T1 and poison its stump or, failing that, prune T1 to no higher than the Respondent’s dwelling.

   (2)Prune T2 where it overhangs the Respondent’s property.

   (3)Repeat any…