Chevalier v Hyasat

[2022] NSWLEC 1029

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chevalier v Hyasat [2022] NSWLEC 1029

Hearing dates:

18 January 2022

Date of orders:

18 January 2022

Decision date:

18 January 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – a single tree does not form a hedge – one tree not on respondents’ land – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A ss 4, 14A, 14B, 14F

Texts Cited:

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Arnaud Chevalier (First Applicant)
Sandrine Chevalier (Second Applicant)
Marina Hyasat (First Respondent)
Hasan Hyasat (Second Respondent)

Representation:

A Chevalier (Litigant in Person) (Applicants)
L Sims (Respondents)

Solicitors:
Bick & Steele (Respondents)

File Number(s):

2021/290955

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: Arnaud and Sandrine Chevalier (‘the applicants’) find the water view from their North Curl Curl home is partially obstructed by nearby trees. They applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for their neighbours, Marina and Hasan Hyasat (‘the respondents’) to prune and maintain one tree. They also seek an order for costs.

The hearing

2. The matter was heard via MS Teams. The parties were self-represented. With the material filed by both parties, considered along with their submissions, I am able to make this decision without requiring a subsequent site view.

The trees

3. The Chevaliers’ application shows two trees in the diagram at question 2 (Exhibit B, page 2). One of these (‘T2’) is on public land to the east of the Hyasats’ property; they seek no orders for that tree. Their response at question 3 (Exhibit B, page 3) includes the details of one tree (‘T1’) on the Hyasats’ property: a Peppermint Willow (Agonis flexuosa) approximately 7 metres tall growing close to the common boundary and partly overhanging the Chevaliers’ property. The Chevaliers want the Hyasats to remove overhanging branches and to reduce the tree’s upper crown to improve their view.

No jurisdiction to make orders

4. On the face of it, the applicants’ request is a simple one; perhaps to them, undeserving of detailed submissions from Counsel in response. But as the Chevaliers have discovered, there is no inherent right to a view. Since 2010, Pt 2A of the Trees Act has provided property owners with an avenue to seek relief when neighbouring trees obstruct sunlight or views, but as Ms Sims stated, it comes with jurisdictional prerequisites.

5. Section 14A of the Trees Act limits the trees to which Pt 2A applies.

14A Application of 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, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

(2) …

6. Tree T1 is a single tree growing on the Hyasats’ property. It is not part of a hedge formed by two or more trees. It may be multi-stemmed, but it is one tree. Therefore Pt 2A of the Trees Act does not apply to T1 and the Court cannot make orders for this tree.

7. The Trees Act does not apply to trees on land managed by a council (s 4(2)(a)), so no orders could be made for T2 even if they were sought.

8. Despite submissions from both parties regarding the severity of the view obstruction and relevant discretionary matters at s 14F of the Trees Act, the failure of this application to meet the jurisdictional test at s 14A(1) obviates the need for the Court to consider those matters.

9. Commissioners of the Court do not have the power to order costs. Although my findings above are likely to dissuade the applicants from seeking an order for costs, if they wish to pursue that they would need to file a Notice of Motion for costs to be heard by the Registrar or a Judge of the Court.

10. For the purpose only of informing the applicants, I offer the following. Although they rely on the Hyasats for any pruning beyond the common boundary, the Chevaliers may be able to undertake some pruning of branches overhanging their own property. The Warringah Development Control Plan 2011 (‘the DCP’) includes the following exception to the usual requirements for vegetation clearing permits (at Part E1, Preservation of Trees or Bushland Vegetation):

“Council’s authorisation of a Vegetation Clearing Permit is not required for:

…

Reasonable maintenance involving trimming and pruning of up to ten percent (10%) of a tree's canopy within a 12 month period (all pruning works must be in accordance with Australian Standard AS 4373:2007 Pruning of amenity trees).”

11. A note to this part of the DCP states: “The cutting down, pruning or removal by persons other than the owner must have written permission from the owner.” It is perhaps unclear if this note applies only to vegetation that is the subject of a council permit, or to all vegetation, so the applicants may wish to seek clarification from Northern Beaches Council.

Orders

12. As a result of the foregoing, the Court orders:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 20 January 2022