El-Ammar v Cheaitani (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:

El-Ammar v Cheaitani (No 2) [2023] NSWLEC 1475

Hearing dates:

28 April 2023

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – were the trees planted to form a hedge - do the trees form a hedge – are views severely obstructed – balancing of interests

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 14, 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

El-Ammar v Cheaitani [2023] NSWLEC 1034

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

McDonald v Sheehan [2022] NSWLEC 1159

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Annotated Trees (Disputes Between Neighbours) Act 2006

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

File Number(s):

2023/54666

Publication restriction:

Nil

JUDGMENT

This decision was reserved.

1. COMMISSIONER: Anthony and Diane El-Ammar, the applicants, occupy a two-storey dwelling on sloping land in Greenwich, from which they gain views of the Sydney CBD and their heavily vegetated district, across the respondent’s property. They share a side boundary with the respondents, Atef Cheaitani and Diana Cheytani. Mr and Mrs El-Ammar purchased their two-storey property in 2003, and claimed that since then, trees in the respondent’s property had grown to create a severe obstruction of views from their dwelling.

2. An application by the El-Ammar‘s was heard by Gray C on 27 January 2023 and published in El-Ammar v Cheaitani [2023] NSWLEC 1034 (El-Ammar). At [5] of El-Ammar, Commissioner Gray described the trees as, “Leighton Cypress trees, with trunks that are evenly spaced and roughly perpendicular to the boundary fence, beside a shed that is to the rear of the property”.

3. Commissioner Gray determined that four Cypress trees had been planted to form a hedge in 2005, but when three of the four trees were removed before the hearing, there was no longer a hedge, thus the application was dismissed.

4. At [17] of El-Ammar, Commissioner Gray, stated;

“17 As a result, in the present circumstances, the state of affairs of being planted so as to form a hedge does not continue to the present, contrary to the requirement created by the wording of s 14A(1)(a) of the Trees Act. This means that the jurisdictional precondition contained in s 14A(1)(a) is not met, as the trees are not, at present, planted so as to form a hedge.”

5. Informed by the initial hearing, Mr and Mrs El-Ammar redefined the hedges in the respondents’ back yard for the purpose of a second application to the Land and Environment Court (LEC), pursuant to s 14B…