King v Moore

[2023] NSWLEC 1654

Land and Environment Court

New South Wales

Medium Neutral Citation:

King v Moore [2023] NSWLEC 1654

Hearing dates:

26 October 2023

Date of orders:

26 October 2023

Decision date:

26 October 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – palms – obstruction of views – whether the palms form a hedge – whether reasons to interfere with the trees outweigh reasons to avoid interference

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14E

Cases Cited:

Arnold v Persson [2022] NSWLEC 1270

Category:

Principal judgment

Parties:

Natasha Nicole King (Applicant)
Taki Moore (Respondent)

Representation:

Counsel
N King (Self-represented) (Applicant)
T Moore (Self-represented) (Respondent)

File Number(s):

2023/265789

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: Natasha King (the applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the removal of a row of Bangalow palms (the trees) on the neighbouring Queenscliff property belonging to Taki Moore (the respondent). The hearing took place onsite, allowing the Court to inspect the trees and both properties.

The trees

2. Mr Moore obtained a report from arborist Robert de Jong, who described the 15 Bangalow palms (Archontophoenix cunninghamiana) as 4–8 metres tall, with 10 of the trees in good condition. Mr de Jong recommended removal of the other 5 trees because they are in poor condition.

Jurisdictional hurdles

3. Certain tests must be met before the Court can make any orders.

14E Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b) the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

Reasonable effort

4. Ms King has written to Mr Moore on several occasions. I am satisfied that she made a reasonable effort to reach some agreement about the trees with Mr Moore (s 14E(1)(a) of the Trees Act).

The view obstruction

5. Ms…