El-Ammar v Cheaitani

[2023] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation:

El-Ammar v Cheaitani [2023] NSWLEC 1034

Hearing dates:

27 January 2023

Date of orders:

01 February 2023

Decision date:

01 February 2023

Jurisdiction:

Class 2

Before:

Gray C

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

TREES (NEIGHBOURS) – Hedge – obstruction of views – whether trees form a hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 s 14A

Cases Cited:

Johnson v Angus [2012] NSWLEC 192

Category:

Principal judgment

Parties:

Anthony El-Ammar (First applicant)
Diane El-Ammar (Second applicant)
Atef Cheaitani (First respondent)
Diana Cheytani (Second respondent)

Representation:

A El-Ammar (Self-represented) (Applicants)
A Cheaitani (Self-represented) (First Respondent)
D Cheytani (Self-represented) (Second Respondent)

File Number(s):

2022/326134

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicants, Mr El-Ammar and his mother Mrs El-Ammar, own property at Greenwich from which they have enjoyed views to the Sydney city skyline. They claim that four trees forming a hedge on the adjoining neighbours property, owned by the respondents, Mr Cheaitani and Mrs Cheytani, have obstructed those views. On 1 November 2022 they lodged an application with the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the removal of the trees.

2. Subsequent to the lodgement of the application, the respondents have taken steps to remove three of the four trees, such that three of the trees are now stumps measuring 40-50cm. Their position is that the remaining tree makes a contribution to the privacy of their garden and house, and to the landscaping of their garden. They also say that, with the removal of three of the four trees, there is no longer a hedge.

3. Before the Court has the power to make any orders under the Trees Act with respect to the trees, there are a number of jurisdictional tests that must be satisfied. These tests include determining if there are two or more trees that form a hedge, and if they severely obstruct a view. It is only if those tests are satisfied that I would then have the power, under the Trees Act, to proceed to make orders to remedy, restrain or prevent the obstruction of views, which can include orders for removal of the trees.

The onsite view

4. The hearing took place onsite, allowing for observations of the trees and observations from the viewpoints from which the applicants say their view has been obstructed. Both the applicants’ and the respondents’ properties are battle-axe lots and are each accessed from different streets. The topography of the area is such that there is a fall with a slope of around 20% from the applicants’ property to the respondents’ property.

5. Beginning on the respondents’ property, we observed the four trees that formed the hedge the subject of the application. Although the Tree Dispute Application refers to there being three trees, there are in fact four. They are Leighton Cypress trees, with trunks that are evenly spaced and roughly perpendicular to the boundary…