Land and Environment Court
New South Wales
Medium Neutral Citation: Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336 Hearing dates: 23 November 2011 Decision date: 23 November 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Applications dismissed
Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight; what constitutes a hedge; ambient light is not sunlight; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012
McLaren v Lewis [2011] NSWLEC 1170
Drewett v Best [2010] NSWLEC 1305Category: Principal judgment Parties: D and S Bentley (Applicants - first matter)
C, N and G Ghenzer (Applicants - second matter)
S and R Symonds (Respondents - both matters)Representation: Applicants: Mr D Bentley (Litigant in person - first matter; agent - second matter)
Respondents: Mr S Symonds (Litigant in person - both matters)
File Number(s): 10921 of 2011; 10925 of 2011
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: These are two applications pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by two owners of properties in the same unit block against the owners of trees growing on an adjoining property in Mosman. The applications are made on the basis of obstruction of sunlight to windows of the dwellings and to views from the dwellings.
The applicants are seeking orders for pruning or removal of two Harpephyllum caffrum (Kaffir Plum) trees, identified as T2 and T3 in the applications; and the selective pruning of T4, a mature Camphor Laurel, T5, a tree noted as a Linden but identified on site as a Celtis sp (possibly C. occidentalis (Hackberry)), and T6 a Jacaranda. Tree 1 on the plan is a Camphor Laurel to the north of the Kaffir Plums, however no orders are sought with respect to this tree.
The trees
The trees are growing along the eastern boundary of the respondents' property in sections of a retained garden bed that steps down the relatively steep slope from the street to the north and the dwelling to the south. There are a series of sandstone rock shelves and small terraces. At the southern end of the respondents' property, beyond the dwelling, is a large and mature Liquidambar. Between the Liquidambar and T6 is a very large Brachychiton discolor (Lacebark) growing on the property to the east between the boundary fence and the adjoining dwelling.
According to the respondents' material, the Kaffir Plums were planted in 1996 in accordance with development consent conditions for an inclinator. The trees are approximately 2.5m apart.
Tree 4 is a large and mature Camphor Laurel of unknown provenance and age. In 2010, Mosman Council granted permission for several large branches to be removed from this tree. The majority of the branches were removed from the eastern side of the tree that overhung the common property of the applicants' unit block as well as…
Keep reading for free
Create a free CaseChat account to read Bentley v Symonds; Ghenzer v Symonds and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2011] NSWLEC 1336
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing discovery of documents and the inherent jurisdiction to make orders for the fair and expeditious resolution of proceedings. The plaintiffs needed to show a sufficient connection between the documents and their claims, and that the documents were necessary to enable them to effectively plead and prosecute their claims. The court examined the particulars of claim and affidavit evidence provided by the parties to determine if the plaintiffs had made out a case for the relief sought. Ultimately, the court found that the plaintiffs had not demonstrated the necessary connection or necessity for the relief, and dismissed the applications.
Orders
Orders of the court
Applications dismissed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.