Campbell v Bowen

[2012] NSWLEC 1197

Land and Environment Court

New South Wales

Medium Neutral Citation:	Campbell & anor v Bowen & anor [2012] NSWLEC 1197
Hearing dates:	10 July 2012
Decision date:	10 July 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Amendment Bill 2010
Cases Cited:	Hinde v Anderson and anor [2009] NSWLEC 1148 Tenacity Consulting v Waringah [2004] NSWLEC 140 Torday & Anor v Eather [2012] NSWLEC 1014 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	William Campbell and Dawn Campbell (Applicants) Anthony Bowen and Kathleen Bowen (Respondents)
Representation:	Mr Mark Cottom, Kells The Lawyers (Applicants) Mr Michael McMahon, M E McMahon & Associates (Respondents)
File Number(s):	20309 of 2012

Judgment

1. COMMISSIONER: This application is made under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act"). Mr and Mrs Campbell have applied to the Court seeking orders for removal of the northern hedge in the rear garden of the neighbouring property and for pruning of the hedge along the southern boundary in the rear garden of that property. They say that the view they have enjoyed for many years is now severely obstructed by those hedges. The respondents wish to retain all the trees, saying they enjoy the privacy, shelter and amenity offered by the trees and that the trees provide environmental values.

On-site view

1. At the on-site view we were taken to the five viewpoints on the applicants' property: two in the dining room, two in the lounge room and one in the home office. I observed here that the southern hedge has been recently pruned and does not obstruct any view. The Photinia in the northern hedge have also been pruned and do not obstruct a view. Other trees in the northern hedge partly obstruct a view, however I note that two of these trees are umbrella trees that are not part of the application, and another is a Solanum that is likely to be self-sown rather than planted. We then viewed the hedges from within the respondents' property. The Photinia, which make up the entire southern hedge and a major part of the northern hedge, have all been pruned to below 2.5 m height.

Jurisdictional tests

1. As pointed out by both Mr Cottom and Mr McMahon the Act's jurisdictional tests are crucial to this matter.

Southern hedge

1. Mr Cottom submits that, on the reading of sections 14A, 14B and 14D of the Act, it is the height of the trees at the time of the application being made that is relevant. However my own reading of s 14A(1)(b) is that it clearly states that Part 2A of the Act "applies only to groups of two or more trees that rise to a height of at least 2.5 m (above existing ground level)." The court has consistently applied that the trees must rise to this height on the…