Marton v Pontin

[2021] NSWLEC 1601

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Marton v Pontin [2021] NSWLEC 1601

Hearing dates:

21 July 2021

Date of orders:

13 October 2021

Decision date:

13 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibits A, B and 4.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring trees – trees are not planted to form a hedge – obstruction of a view –the obstruction is not severe – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

Bonner v D’Arcy [2021] NSWLEC 1329

Haindl v Daisch [2011] NSWLEC 1145

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

Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Wisdom v Payn [2011] NSWLEC 1012

Wise v Hickey [2019] NSWLEC 1524

Category:

Principal judgment

Parties:

Stephen Marton (Applicant)
Andrew Pontin (First Respondent)
Marina Pontin (Second Respondent)

Representation:

Counsel:
S Marton (Litigant in Person) (Applicant)
L Sims (Respondents)

File Number(s):

2021/82398

Publication restriction:

No

Judgment

Background to the application

1. Stephen Marton (‘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 relating to neighbouring trees, on the basis that they severely obstruct his access to views and sunlight. He seeks orders for trees in hedges on the neighbouring Warriewood property belonging to Marina and Andrew Pontin (‘the respondents’), to be pruned and maintained at 1.8 metres, and for other trees in the Pontins’ garden to comply with conditions of their Development Consent.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

3. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent a severe obstruction of sunlight to a window of, or a view from, the applicant’s dwelling.

4. The hearing took place via MS Teams. Relying on the available evidence and submissions made during the hearing, I…