Burns v St Clair (No 2)

[2015] NSWLEC 115

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burns & anor v St Clair & anor (No 2) [2015] NSWLEC 115
Hearing dates:	20 July 2015
Date of orders:	20 July 2015
Decision date:	20 July 2015
Jurisdiction:	Class 2
Before:	Biscoe J
Decision:	The respondents’ notice of motion filed on 19 June 2015 is dismissed.
Catchwords:	COSTS – motion for costs by successful respondents in a trees dispute.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 ss 14B, 14E Land and Environment Court Rules 2007 r 3.7(2), (3)
Cases Cited:	Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103, 158 LGERA 224 Bailey v Gould [2011] NSWLEC 96 Burns & anor v St Clair & anor [2015] NSWLEC 1185 Community Association DP 270253 v Woollahra Municipal Council [2015] NSWCA 80 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Low v Elliott [2008] NSWLEC 111 McLaren v Lewis (No 2) [2011] NSWLEC 176, 183 LGERA 344 Moase v McMahon [2011] NSWLEC 13 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, 134 LGERA 23
Category:	Costs
Parties:	Anthony Burns (First Applicant) Leanne Faye Burns (Second Applicant) Lachlan Stuart St Clair (First Respondent) Katharine Elizabeth St Clair (Second Respondent)
Representation:	COUNSEL: D Legg, solicitor (Applicants) L St Clair, in person (Respondents)   SOLICITORS: Burridge & Legg (Applicants) N/A (Respondents)
File Number(s):	20149/15

EX TEMPORE Judgment

1. This is a contested motion for costs by the successful respondents in a tree dispute between neighbours in Class 2 of the Court’s jurisdiction. The respondents claim costs of $6,552 for: (a) a pre-hearing view loss assessment report from a planner, (b) pre-hearing view/site drawings by an architect, and (c) legal fees for advice, which the respondents tell me concerned the appropriate procedure in the proceedings. The planner’s and architect’s documents were served on the applicants about a month before the hearing. In addition, the respondents claim an unspecified and unevidenced amount in respect of their motion for costs. The respondents were not legally represented at any stage of the proceedings. The applicants were, and are, represented by a solicitor.

2. The applicants purchased their residential property in 1985. In 2006 the respondents purchased the adjoining residential property to the west and down slope. At that time, the respondents’ property included a pool in the front setback and a row of bamboo along the common boundary between the front of the respondents’ dwelling and the front fence. The bamboo, which constitutes a hedge, separates the applicants’ driveway from the respondents’ pool. The respondents value the bamboo for the privacy it affords their pool. Historically, the applicants have enjoyed the setting of the sun from their deck and lounge room, as well as the views.

3. The applicants applied to the Court under s 14B of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for an order that the respondents prune the bamboo at the respondents’ expense to a height of four metres. Section 14E provides:

14E Matters of which…