Golchin v Turner

[2013] NSWLEC 1138

Land and Environment Court

New South Wales

Medium Neutral Citation:	Golchin v Turner [2013] NSWLEC 1138
Hearing dates:	24 July 2013
Decision date:	30 July 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; trees to which Part 2A applies
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Mr A Golchin (First Applicant) Ms L Golchin (Second Applicant) Mr B Turner (Respondent)
Representation:	Applicant: Mr S Brockwell (Barrister) Respondent: Mr G Christmas (Solicitor)
File Number(s):	20283 of 2013

Judgment

1. COMMISSIONER: The applicants in these proceedings contend that enjoyable views of the Sydney Harbour Bridge, the Opera House, Sydney Harbour, North Sydney skyline, district views of Vaucluse and the land/water interface near Clifton Gardens and Georges Heights are severely obstructed by trees growing on the respondent's property.

1. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders requiring the reduction of the trees to a height of 4.0 metres with subsequent maintenance at 4.5m and a reduction in width of nominated trees to 1.5m. These works are to be carried out by the respondent and his cost, or alternatively by the applicants at the respondent's cost.

1. During the hearing, the application was amended to alter the pruning height to 4.5m with subsequent maintenance at 5.0m.

1. The applicants are also seeking orders for the payment of legal costs and expert's fees. In regards to this element of the application, Commissioners do not have the jurisdiction to award such costs. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or the Registrar.

1. The respondent disputes the severity of the impact of the trees on the applicants' views. However, should the Court determine that the impact is severe, the respondent's position is that the trees should be pruned by the respondent at the applicants' expense.

1. In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the trees the subject of the application.

Does Part 2A apply to the trees in question?

1. Section 14A(1) states:

(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. The trees in question are located at the rear of the respondent's property in Vaucluse. Trees numbered T4, T5, T6 and T7 are growing along the south-eastern boundary of the respondent's property; this is the common boundary between the parties. Tree 8 is located on the south-western boundary and some distance from the…