Bentley v Symonds; Ghenzer v Symonds

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 1305
Category:	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.

1. 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.

1. 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

1. 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.

1. 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.

1. 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…