Coleman & anor v Leddy & anor

Land and Environment Court

New South Wales

Medium Neutral Citation:	Coleman & anor v Leddy & anor [2013] NSWLEC 1094
Hearing dates:	28 May 2013
Decision date:	31 May 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; views; are the trees planted so as to form a hedge;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Tony and Gai Coleman (Applicants) Christopher and Margaret Leddy (Respondents)
Representation:	Applicants: T & G Coleman (Litigants in person) Respondents: M Leddy (Litigant in person)
File Number(s):	20131 of 2013

Judgment

1. COMMISSIONER: The applicants in these proceedings moved into their newly constructed dwelling in Skennars Head in 2007. At that time, they assert that they enjoyed uninterrupted views of the ocean to the southeast. They contend that they were able to see the annual whale migration from their sofa in the living room and from their deck on the top floor of their dwelling. However, it is their position that the growth of vegetation on the respondents' property has severely obstructed the views they initially enjoyed.

1. Accordingly, the applicants have applied to the Court under s 14B(b) Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal and maintenance of elements of the respondents' vegetation. Specifically, the applicants are seeking the removal of all bamboo and the maintenance to 2.5m of any remaining vegetation (and future plantings) growing along the western boundary of the respondents' property.

1. The respondents do not wish to remove or prune the vegetation as they value it for the privacy it affords their dwelling.

Do the trees form a hedge for the purpose of the Act?

1. In applications under part 2A there are a number of jurisdictional tests that must be satisfied. The first of these is found in s 14A(1); this states:

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).

1. In this matter, the applicants have nominated 19 trees, which are shown on the diagram in the application claim form. The applicants acknowledge that the accuracy of the diagram is limited by the fact that it is based on what was visible from their side of the dividing fence.

1. The trees in question are planted in a garden bed along the rear/ western boundary of the respondents' property. The vegetation comprises two species of bamboo (Bambusa lako - Timor Black Bamboo, and Bambusa textiles var Gracilis - Gracilis bamboo), several Metrosideros sp (New Zealand Christmas Bush), a Tuckeroo, and two species of palms.

1. In…