McIntosh v Humphrey

[2015] NSWLEC 1115

Land and Environment Court

New South Wales

Medium Neutral Citation:	McIntosh v Humphrey & anor [2015] NSWLEC 1115
Hearing dates:	23 April 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge, views; trees not a hedge for the purpose of the Act
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Wisdom v Payne [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr P McIntosh (Applicant) Mr G and Mrs S Humphrey (Respondents)
Representation:	Counsel: Applicant: Mr P McIntosh (Litigant in person) Respondents: Mr G and Mrs S Humphrey (Litigants in person) Solicitors:
File Number(s):	20089 of 2015

Judgment

1. COMMISSIONER:   The applicant owns a property in Balgowlah. The respondents own the adjoining property to the west and downslope of the applicant’s property. The applicant contends that trees growing on the respondents’ property severely obstruct views of the northern part of Sydney Harbour and of ferries arriving and departing the Manly wharf.

2. The applicant has applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking the following orders:

1. The owner must permanently remove creepers, in particular the bougainvillea, that grow into the trees, and neighbouring properties, that create a solid canopy obstructing our views.

2. The owner must prevent the current, or future, trees from growing so big and dense resulting in the combined foliage creating a hedge blocking our view across the whole property.

3. The owner must prevent the current or future trees from growing into the north and south boundary properties thereby creating an obstruction to our views.

3. In applications made under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied before the Court’s powers to make orders under s 14D are engaged. The judgement in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 describes the sequence of steps.

4. The first test is found in s 14A(1)(a) which states:

1. This Part applies only to groups of 2 or more trees that:

1. are planted (whether in the ground or otherwise) so as to form a hedge.

5. The applicant identifies four trees as the subjects of his application. Tree 1 is a Brachychiton acerifolius (Flame Tree), Tree 2 is a Ceiba speciosa (Silk Floss Tree), Tree 3 is a Magnolia grandiflora (Bull Bay Magnolia), and Tree 4 is a Spathodea campanulata (African Tulip Tree). The trees are all mature specimens growing amongst other trees in the garden at the rear of the respondents’ property. They are in a broadly linear arrangement that extends diagonally across the respondents’ back garden. The trunk of Tree 3 is about 3m from Tree 4, Tree 4 is about 5m from Tree 2, and Tree 2 is approximately 2m from Tree 1. At the site inspection is…