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 purpose of forming, a hedge.”

6. His Honour discussed the criteria that contribute to trees forming a hedge at [40] – [41]:

“Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.

But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge.”

7. In Wisdom v Payn [2011] NSWLEC 1012, Moore SC (as his Honour was then) and Hewett AC also considered the meaning of ‘so as to form a hedge’ at [45]:

“… We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

8. There is nothing about the arrangement of the five trees in this application to suggest they are planted so as to form a hedge. These are five trees of different species, sizes, form and habit, planted without any regularity. They are not planted so as to form a hedge. It follows that Part 2A of the Trees Act does not apply to these trees.

Orders

9. As a result of the foregoing, the orders of the Court are:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

09 July 2019 - Correction to typographical error at [6]