Brown v Davey (No 2)

[2022] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v Davey (No 2) [2022] NSWLEC 1190

Hearing dates:

17 February 2022

Date of orders:

08 April 2022

Decision date:

08 April 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge causing obstruction of sunlight – second application – whether there has been a material change in circumstances – whether the trees have grown since the earlier application – whether the sunlight obstruction is severe – respondent has signed a contract to sell their property since the second application was made – purchasers of the respondent’s property unaware of these proceedings – orders for purchaser to be served with the application – opportunity for the purchaser of the respondent’s property to be heard

Legislation Cited:

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

Cases Cited:

Brown v Davey [2021] NSWLEC 1639

Hinde v Anderson [2009] NSWLEC 1148

Category:

Principal judgment

Parties:

Geoffrey Lloyd Brown (Applicant)
Grant Davey (Respondent)

Representation:

Counsel:
L Brown (Agent) (Applicant)
G Davey (Self-represented) (Respondent)

File Number(s):

2021/304521

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: In April 2021, Geoffrey Brown filed an application with this Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Mr Brown sought orders for his neighbours, Grant and Leanne Davey, (the respondents) to prune a hedge on their side of the common boundary. Acting Commissioner Douglas heard the matter. In dismissing the application, Douglas AC noted at [38]–[39] of Brown v Davey [2021] NSWLEC 1639 (“Brown v Davey”):

38 Although one could say that Mr Brown was precipitous with his application, in terms of the specific requirements of the Trees Act, should the circumstances change, as is likely, given these trees’ rapid growth rate, a fresh application can be made. This was determined in Hinde v Anderson & anor [2009] NSWLEC 1148.

39 Given that the immediate successor in title to the owner of the trees is normally bound by any orders made, in the same way as the original owner, the respondent has thus been presented with a short-term opportunity to maintain control over the management of the hedge. These trees could be pruned to maintain their height, without unduly affecting their health or function.

2. Not long after that decision was given, the Daveys put their property on the market. Soon after that, Mr Brown filed a second application with the Court, again seeking orders for the Daveys to prune their hedge and, this time, remove two trees at one end of the hedge.

3. Since the second application was filed with the Court, commencing these proceedings, the Daveys have signed a contract to sell their property. The contract settlement date is in April 2022.

Purchaser to be informed

4. The hearing for this second application took place onsite on 17 February 2022. Lisa Brown, as…