Campbell v Beardsell

[2019] NSWLEC 1239

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Campbell v Beardsell [2019] NSWLEC 1239
Hearing dates:	30 May 2019
Date of orders:	30 May 2019
Decision date:	30 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges obstruction of views – whether the trees are planted so as to form a hedge
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Michael John Campbell (First Applicant) Leigh Beardsell (First Respondent) Robyn Beardsell (Second Respondent)
Representation:	M Campbell, litigant in person (Applicant) L Beardsell and R Beardsell, litigants in person (Respondents)
File Number(s):	2018/391558
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. John Campbell (‘the applicant’) has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders to remedy an obstruction of views caused by trees adjacent to his Mosman property.

2. Part 2A of the Trees Act only applies to certain trees, limited in s 14A at the outset of this part:

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge.

...

3. Mr Campbell’s application refers to five trees (some incorrectly identified) on the property of Leigh and Robyn Beardsell (‘the respondents’):

“1. Oleander

2. Lilli Pilli

3. Silver Ash

4. Pine

5. Norfolk Island Pine”

4. The trees are in various parts of the Beardsells’ heavily vegetated garden. They are not planted with any regularity.

5. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ explained at [37] that the wording of s 14A(1)(a) requires that the trees were planted with the intention of forming a hedge, and that they continue to form a hedge:

“I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as to form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or…