Jones v Cooper

[2020] NSWLEC 1688

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jones v Cooper [2020] NSWLEC 1688

Hearing dates:

12 November 2020

Date of orders:

12 November 2020

Decision date:

12 November 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – running bamboo – has it been planted so as to form a hedge – orders sought for creation of a view not available to the applicant when property purchased – contrary to the intent of the Trees (Disputes Between Neighbours) Act 2006

Legislation Cited:

Interpretation Act 1987

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

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

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

Category:

Principal judgment

Parties:

Gregory Stephen Jones (Applicant)
Felicity Cooper (Respondent)

Representation:

Counsel:
G Jones (Litigant in person) (Applicant)
J Smith (Respondent)

Solicitors:
Dentons Australia Limited (Respondent)

File Number(s):

2020/86912

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. Mr Jones, the applicant, occupied his property at Bowen Mountain in 2017. The rear of his house faces towards the east, and he would like to take advantage of the town’s elevation of about 400 metres, and improve his views of the Sydney basin from the east around to the south-east.

2. The applicant’s potential view is restricted by trees and bamboo, growing in the neighbouring property to his east, with which his property shares a north-south boundary. In pursuit of improved views, Mr Jones submitted an application, pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), claiming that the bamboo in his adjacent neighbour’s property is a hedge which severely restricts his views.

3. Mr Jones’ application designates Mr Steven Cooper as the respondent, but Ms Felicity Cooper, in an affidavit dated 25 September 2020, identifies herself as the registered proprietor of the property. She is also identified as the respondent, in her Counsel’s ‘Outline of Submissions’. Mr and Mrs Cooper occupied their property in mid-2018. Mr Jones delivered a handwritten letter to the owner’s letterbox in November 2018, and a further letter in January 2019, requesting reduction of the height and density of the bamboo to improve the “natural airflow” and improve the “outlook from my home”. When both these letters went unanswered, Mr Jones sent a further letter in March 2019, which noted his intention to escalate “this issue for resolution”, if he received no response by 17 April 2019.

4. Mr and Mrs Cooper commissioned Dentons Australia Ltd, Solicitors, to respond on their behalf, and various additional letters were exchanged. Mr Jones has not had the opportunity to meet or speak directly with the respondent.

The onsite hearing

5. The hearing commenced with an inspection of the bamboo, and other trees in the respondent’s side yard. The…