Adamson v Weston

[2021] NSWLEC 1677

Land and Environment Court

New South Wales

Medium Neutral Citation:

Adamson v Weston [2021] NSWLEC 1677

Hearing dates:

20 August 2021 and 2 November 2021

Date of orders:

08 November 2021

Decision date:

08 November 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

(2) The exhibits are returned except for A, 1 and 2.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – lilly pilly hedge – obstruction of views – whether the view obstruction is severe – extent of the view previously available to the applicants – distance from the applicants’ dwelling to the trees – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

Hinde v Anderson [2009] NSWLEC 1148

Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Category:

Principal judgment

Parties:

John James Adamson (First Applicant)
Jennifer Faye Adamson (Second Applicant)
Shane Brian Weston (First Respondent)
Catherine Valerie Yates (Second Respondent)

Representation:

Counsel:
J Adamson (Litigant in Person) (First Applicant)
J Adamson (Litigant in Person) (Second Applicant)
W Smith (Solicitor) (Respondents)

Solicitors:
Savage and Love (Respondents)

File Number(s):

2021/136529

Publication restriction:

No

Judgment

Background to the application

1. Jenny and John Adamson (‘the applicants’) bought their Way Way property in May 2017. The dwelling they constructed on their land was completed in August 2018. Catherine Yates and Shane Weston (‘the respondents’) own the adjoining property to the Adamsons’ north. The respondents have planted, in several stages, groups of small-leaved lilly pillies (Syzygium luehmannii) (‘the trees’) on their property along the common boundary shared with the applicants: 11 trees in 2009/2010 (8 trees in ‘Group A’ and 3 in ‘Group B’), 3 trees in 2016 (extending Group B) and 3 more trees in 2018 (‘Group C’) (Exhibit 1, pp 5–6). The planting time of two other trees in Group B is not provided. There are 19 trees in total. Finding their views affected by the trees, the Adamsons applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the trees to be pruned and maintained so as to restore their views.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicants’ interest…