French v Bendror

[2017] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation:	French & anor v Bendror [2017] NSWLEC 1013
Hearing dates:	11 January 2017
Date of orders:	17 January 2017
Decision date:	17 January 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali & anor [2010] NSWLEC 1334 Deville & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Karam v Meredith [2012] NSWLEC 1114 Mayes v Keene [2016] NSWLEC 1604 McDougall v Philip [2011] NSWLEC 1280
Category:	Principal judgment
Parties:	John & Maria French (Applicants) Rowena Bendror (Respondent)
Representation:	Applicants: John and Maria French(Litigants in person) Respondent: Geoff Beveridge (Barrister)
File Number(s):	313226 of 2016

Judgment

1. COMMISSIONER: The applicants own a property in Bowral. They have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to 2.5m, and subsequent annual maintenance, of two rows of trees growing on an adjoining property to the north.

2. The orders are sought on the applicants’ contention that, amongst other things, the trees severely obstruct sunlight to windows of their dwelling.

3. Apart from orders for pruning, the applicants are seeking reimbursement of all costs and fees, including legal costs, incurred by them in relation to the Class 2 application.

4. In dealing with this matter first, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

5. In regards to the requested height of 2.5m, the applicants were under the misapprehension that 2.5m is the ‘legal’ height required by the Trees Act. This perception is not uncommon. The height of 2.5m is simply the height at which the trees must be in order to engage the Court’s jurisdiction in Part 2A of the Trees Act.

6. The trees in question are seven Cupressus torulosa (Bhutan Cypress) in a row of more than seven Cypress and an adjoining row of seven Magnolia grandiflora ‘Little Gem’. The trees are growing along the southern side boundary of the respondent’s property.

The applicants’ position

7. The applicants purchased their property in July 2003 and occupied it in 2011. During the hearing the applications stated that when they purchased their large battle-axe property there were a number of buildings on the site including the original cottage. In 2011 the original cottage was partially demolished and substantially extended. The extensions include a wing parallel to the northern / rear boundary. The extensions necessitated the excavation of the rear of the site. A stone wall was constructed in order to retain the cutting. The natural soil level along the northern and eastern boundaries slopes down from east to west and more gently from north…