Matthews v Holford

[2022] NSWLEC 1407

Land and Environment Court

New South Wales

Medium Neutral Citation:

Matthews v Holford [2022] NSWLEC 1407

Hearing dates:

29 March 2022 and 31 March 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The Pt 2 application is refused.

(2) The Pt 2A application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – Pt 2A application – neighbouring hedge – obstruction of views – whether the trees are planted so as to form a hedge – whether the obstruction is severe – privacy

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10; Pt 2A, ss 14A, 14B, 14E

Cases Cited:

Freeman v Dillon [2012] NSWLEC 1057

Haindl v Daisch [2011] NSWLEC 1145

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

Wisdom v Payn [2011] NSWLEC 1012

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Martin Matthews (Applicant)
Graham Holford (First Respondent)
Margaret Holford (Second Respondent)

Representation:

Counsel:
M Matthews (Self-represented) (Applicant)
G Holford (Self-represented) (First Respondent)
M Holford (Self-represented) (Second Respondent)

File Number(s):

2021/339069

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: Martin Matthews (the Applicant) has applied to the Court pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for his neighbours Graham Holford and Margaret Holford (the Respondents) to prune trees on their property.

2. Under Pt 2 of the Trees Act, Mr Matthews seeks orders for the Holfords to prune trees that might cause damage or injury. Under Pt 2A, he seeks orders for the Holfords to prune and maintain at a lower height several trees that obstruct views from his dwelling.

The hearing

3. The hearing in these proceedings took place onsite. Parties were self-represented. The Court visited both properties to view the trees, the views and any view obstruction, and the surrounding environment.

4. The applicant provided recent and historical photographs of views from his property. The respondents provided a report by an arborist and copies of letters written to the applicant. I observed the trees and also rely on my own arboricultural experience and expertise in making this decision.

The Applicant made reasonable effort

5. Both Pt 2 (at s 10(1)) and Pt 2A (at s 14E(1)) of the Trees Act require the Court to be satisfied, before making any orders, that the Applicant has made a reasonable effort to reach agreement with the Respondents before the Court can make orders. Mr Matthews has discussed the trees with the Holfords and has written to them about the trees. The Holfords have agreed to some pruning, but disagree as to the extent of pruning and who should pay. I am satisfied that Mr Matthews’ efforts were reasonable.

Trees in the application

6. Mr Matthews’ application includes 12 trees. Trees 1–10 are Strelitzia nicolai (Giant Bird of Paradise) near the back…