Mediansky v Willmott

[2014] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mediansky v Willmott & anor [2014] NSWLEC 1098
Hearing dates:	26 February 2014
Decision date:	06 March 2014
Jurisdiction:	Class 2
Before:	Moore SC
Decision:	See paragraph (66)
Catchwords:	TREES; damage to property; obstruction of sunlight; privacy
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson and anor [2009] NSWLEC 1148 McCallum v Riordan & anor [2011] NSWLEC 1009 Zangari v Miller (No. 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	F Mediansky (Applicant) G Willmott (First Respondent) S Willmott (Second Respondent)
File Number(s):	21024 of 2013

Judgment

1. SENIOR COMMISSIONER: Four Fiddlewood trees (the trees), Citharexylum spinosum, are located on the boundary of a property in Woollahra, a boundary that runs what might be described for the purposes of these proceedings generally but not precisely east-west. The trees are located on the northern side of the boundary and the property on the northern side of the boundary is somewhat higher, at ground level, than the property on the southern side of the boundary.

1. The reasons for the discrepancy in ground levels is not material in the proceedings, but it is appropriate to note that, on the property to the south, the applicant has planted a row of Camelia sasanquas that abut the boundary and grow to the height of the top of a timber paling fence that has been erected on a low brick retaining wall located, again generally speaking and for purposes that is not necessary to deal with in detail, generally on the boundary between the properties.

1. That brick wall has in the past been clad by the applicant with a sandstone fascia to provide a differentiated and more attractive presentation to his property than merely the face of the unrendered low brick wall. The applicant has made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application comprises two distinct elements, an element pursuant to pt 2 of the Act (which deals with damage to the applicant's property or risk of injury to persons) and under pt 2A of the Act (which deals with high hedges and impacts on sunlight or views).

1. There are different jurisdictional tests that need to be satisfied with respect to each of those elements of the application, ones to which, in detail, I will return later.

1. With respect to applications under pt 2, s 10(2) of the Act requires that I must be satisfied that the trees that are concerned with the application - that is the four Fiddlewood trees - are causing or are likely in the near future to cause damage to the applicant's property or are likely to cause injury to any persons.

1. The damage that has been claimed relates to not only the brick wall but to the fascia that has clad it. It is convenient, at this time, to indicate that I am satisfied that the jurisdiction of the Court for the purposes of pt 2 is…