Muraben v Elmowy

[2011] NSWLEC 1273

Land and Environment Court

New South Wales

Medium Neutral Citation:	Muraben v Elmowy [2011] NSWLEC 1273
Hearing dates:	15 September 2011
Decision date:	15 September 2011
Jurisdiction:	Class 2
Before:	Fakes C; Galwey AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] hedge, obstruction of views; Act does not apply to self sown/ remnant trees; not planted so as to form a hedge; no jurisdiction to make orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Wisdom v Payn [2011] NSWLEC 1012 McLaren v Lewis [2011] NSWLEC 1170
Category:	Principal judgment
Parties:	D & I Muraben (Applicants) N & R Elmowy (Respondents)
Representation:	Applicants: Mr D Muraben (Litigant in person) Respondents: N & R Elmowy (Litigants in person)
File Number(s):	20464 of 2011

Judgment

1. COMMISSIONERS: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Vaucluse against the owners of trees growing on an adjoining property.

1. The applicants are seeking the reduction in height by 3m of trees on the respondents' property on the basis that the trees obstruct views from their dwelling.

Procedural matters

1. Before considering the application, a number of procedural matters were raised by the applicants before and during the hearing. The first applicant wrote to the Court on 1 September 2011 advising that the respondents had failed to file and serve the documents upon which they were to rely by the date specified at the directions hearing; as a result, the applicant objected to it being allowed into evidence. That objection was sustained at the hearing.

1. In the letter, the applicant also sought permission to appoint his expert arborist, Mr Lester Willis, as his agent. This was rejected by the Assistant Registrar on the basis that an expert witness cannot be an advocate for a party as this would contravene the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 . The applicant was advised that he could appoint another agent or solicitor to act for him. At the hearing, the applicant again sought to appoint Mr Willis as his agent and not as his arborist. This was rejected for the reasons given by the Registrar. Given the previous appointment of Mr Willis as an expert it was considered that his appointment as an agent would have blurred the boundaries between the expert's duty to the Court and the advocate's duty to the client, particularly in a case involving Mr Willis' area of expertise. It was determined that Mr Willis could give opinion evidence as an arborist and that the applicant could represent himself.

The hearing and the evidence

1. Returning to the application, the diagram in the 'Tree Dispute Claim Details (High Hedges)' indicates five trees. On site it was clarified that only four of those trees are on the respondents' property; Tree 2 is on an adjoining property. Trees 1, 3 and 4 are mature Angophora costata