Moore v Studholme

[2020] NSWLEC 1519

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moore v Studholme [2020] NSWLEC 1519

Hearing dates:

28 July 2020

Date of orders:

29 October 2020

Decision date:

29 October 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)   The application is granted.

(2)   Within 60 days of the date of these orders, the respondents are to remove all bamboo and tiger grass in Hedge 2 on their southern side boundary, Hedge 3 on their front boundary, and Hedge 4 on their northern side boundary, and take any action required to prevent the tiger grass and bamboo in these three hedges regrowing.

(3)   If the respondents establish any hedges along their northern or southern side boundaries in future, they are to use species that grow to a height of no more than 5 metres at maturity.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo and tiger grass – obstruction of views – whether the obstruction is severe – whether the applicant has lost access to views – orders for removal – orders to restrict height of future hedges

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW)

Trees (Disputes Between Neighbours) Regulation 2019

Cases Cited:

Steber v Job [2019] NSWLEC 1308

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Principal judgment

Parties:

David Phillip Moore (Applicant)
Brett Alexander Studholme (First Respondent)
Alma Studholme (Second Respondent)

Representation:

D Moore (Litigant in person) (Applicant)
B Studholme (Litigant in person) (First Respondent)
A Studholme (Litigant in person) (Second Respondent)

File Number(s):

2020/122734

Publication restriction:

No

Judgment

Background to the application

1. In August 2016 David Moore (‘the applicant’) purchased his residential dwelling near the top of a ridge in Goonellabah, on the far north coast of New South Wales. After his views were affected by trees on the neighbouring property belonging to Brett Studholme and Alma Studholme (‘the respondents’) he applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the trees to be pruned and maintained at a height of 2.5 metres and for the trees’ growing area to be reduced.

The hearing

2. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

Framework for this decision

3. For the Court to 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 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 owner (s 14E(1));

• The trees must…