Killick v Halliday

[2014] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation:	Killick v Halliday [2014] NSWLEC 1112
Hearing dates:	17 June 2014
Decision date:	17 June 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	The application is dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; views; trees not planted so as to form a hedge
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Golchin v Turner [2013] NSWLEC 113 Johnson v Angus [2012] NSWLEC 192 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Ms C Killick (Applicant) Ms M Halliday (Respondent)
Representation:	Applicant: Ms C Killick (Litigant in person) Respondent: Mr M Corbett-Jones (Solicitor) Respondent: Simpson Freed
File Number(s):	20141 of 2014

Judgment

1. COMMISSIONER: The applicant' family has owned their battleaxe block in Cronulla since 1950. In 2007 the applicant moved into a new extension adjoining the original dwelling on the property. The applicant maintains that the views she once enjoyed of Gunnamatta Bay have been severely obstructed by trees growing on the adjoining property to the east.

1. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the pruning of three trees and their subsequent maintenance.

1. The respondent purchased her property in 2007. She states that the property was heavily overgrown with unmanaged trees, shrubs, vines and weeds. While she subsequently removed most of this vegetation, the respondent disputes the availability of the applicant's views given existing vegetation growing near the shoreline of the bay that would also obstruct the applicant's views.

1. In applications under Part 2A, there are a number of tests that must be sequentially satisfied before the Court's powers to make orders under s 14D are engaged. The first of these is whether Part 2A applies to the trees the subject of the application.

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 application was made in regards to three trees; two Leyland Cypress planted in a raised planter box in about 2010, and a single Crepe Myrtle thought to be at least 50 years old.

1. In the week before the hearing, one of the Leyland Cypress trees was removed.

1. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of s 14A(1)(a). At [28] His Honour states:

28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.