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 agent, represented her husband, Geoffrey Brown (the applicant). Grant Davey (the respondent) and Leanne Davey were self-represented. When I arrived at the onsite hearing, I was unaware of the sale of the respondent’s property, as was the applicant. It took some questioning for the Daveys to disclose this information. I asked if the Daveys had informed the purchaser of their property that their hedge was the subject of Court proceedings, given that the application was filed prior to their sale contract. They had not. The purchasers might be affected in one of two ways. Firstly, if orders are made and the Daveys do not carry out those orders, the onus for carrying out the orders would fall to the purchasers. Secondly, if orders are made and the Daveys carry out those orders, the hedge may look significantly different to the hedge that existed at the time of signing the contract. After observing the trees and taking some photographs, and hearing submissions from the parties, I made the following orders at the onsite hearing:

1. Within 7 days of the date of these orders, the respondents are to provide to the Court and to the applicant the name and contact details of the purchaser of their property.

2. Within 7 days of receiving the purchaser’s name and contact details from order (1), the applicant is to serve on the purchaser of the respondents’ property a copy of the tree dispute application.

NOTE: The Court will then list the matter for a further directions hearing with Registrar or Assistant Registrar to join the purchaser as a respondent and to set out a timeframe for the purchaser to file any reply or evidence, and for a final hearing with the Commissioner for all parties to be heard.

Purchaser now aware of the proceedings

5. The Daveys subsequently informed the Court that the purchasers of their property are now aware of these proceedings and have no wish to be heard.

Have circumstances changed?

6. Before considering the merits of the application, the Court must be satisfied that there has been a material change in circumstances pertinent to the application since the first application was made. An applicant cannot just make repeated applications in the hope that the Court will change its mind or that a different Commissioner will take a different view. An applicant cannot uncover further evidence that they failed to bring to the first application and rely on this further evidence to gain a different outcome. For an applicant to make a second application regarding the same issue – in this case an obstruction of sunlight caused by trees in a hedge – there must be a material change in circumstances: see Hinde v Anderson [2009] NSWLEC 1148.

7. I observed the trees during the onsite hearing. A bamboo stick used as a reference in photographs for the first application remained in place, standing against a tree in the hedge. I compared the trees’ height against the stick with their height in the 2021 photographs. I took a photograph (Figure 1) from roughly the same location as the 2021 photograph (Figure 2) for later reference. I concluded that the trees have grown a little, but not enough to materially change the extent to which they obstruct sunlight.

Figure 1: My photograph, 17 February 2022. Figure 2: Photograph from 2021 proceedings.

Conclusion

8. Douglas AC noted at [36] of Brown v Davey that in July 2021 the determination as to whether the Daveys’ trees severely obstructed sunlight to the Browns’ windows was “a marginal situation”. Douglas AC wrote (at [37]) that the “…trees have reached a size and rate of growth where they will increasingly shade windows, and for longer periods of the day, if they are not maintained.” Douglas AC did not find that the applicant was unaffected by the hedge – only that the degree of sunlight obstruction caused by the hedge did not quite reach the jurisdictional test at s 14E(2)(a)(i) of the Trees Act – it was not quite severe. He intimated that it soon might be severe. The Daveys stated at the onsite hearing on 17 February 2022 that they do not intend to prune the hedge. The Daveys seemed to be hoping to let the problem fall to the purchasers.

9. As Douglas AC noted, the time at which the trees’ height causes a severe obstruction of sunlight was not far off. By the time of these second proceedings, that time has crept even closer. It seems the Daveys have narrowly avoided dealing with the issue. The Browns will soon have new neighbours with whom they might reach some agreement that might avoid further application to the Court.

10. On 4 March 2022, Mr Davey filed a Notice of Motion seeking orders for the application to be dismissed on the grounds that there had been no change since Mr Brown’s first application. He also sought costs. Commissioner Gray determined to make no orders on the Notice of Motion. Should Mr Davey pursue a costs order in future, I note the following:

• The hedge had grown during the period that elapsed between Mr Brown’s two applications.

• Douglas AC explained in Brown v Davey that the situation was marginal.

• The second application brought the issue to the attention of the purchasers of the Daveys’ property prior to their arrival at the property.

Orders

11. As a result of the foregoing, the Court orders that:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 April 2022