North v Andrews; North v Cortis

Land and Environment Court

New South Wales

Medium Neutral Citation:	North & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339
Hearing dates:	9 November 2011
Decision date:	29 November 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Applications dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; are the trees planted so as to form a hedge; must a hedge be contained on one property;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007 Interpretation Act 1987 Trees (Disputes Between Neighbours) Amendment Bill 2010
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Boddington v Julian & anor [2011] NSWLEC 1172 Wisdom v Payn [2011] NSWLEC 1012, McLaren v Lewis [2011] NSWLEC 1170 Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336 Haindl v Daisch [2011] NSWLEC 1145 Ball v Bahramali & Anor [2010] NSWLEC 1334 Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Applicants: I & L North (both matters) Respondents: Mrs K Andrews (first matter) S & S Cortis (second matter)
Representation:	Respondents: (both matters) Mr McMillan (Counsel) Applicants: (both matters) Mr Austin (Solicitor) Applicants: Michael Austin, Lawyer
File Number(s):	20689 and 20690 of 2011

Judgment

1. COMMISSIONER: These are two separate but related applications under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Randwick regarding trees on two adjoining properties. The matters were heard concurrently.

1. The Cortis property adjoins the applicants' property to the south. The Andrews property is at the rear of the Cortis property and to the southwest of the applicants' property.

1. The applicants are seeking orders for the pruning of a tree on the Andrews property and several trees on the Cortis property to a height that restores their views of Botany Bay and environs, views they contend are severely obstructed by the respondents' trees. Further orders are sought for the maintenance of the trees at that height.

The Andrews property

1. The application identifies one tree, shown as T7 on the plan, growing at the rear of the Andrews property. When this property was inspected during the course of the hearing, it was found there was another tree growing several metres from T7 which was not especially visible from the applicants' dwelling. Leave was granted to amend application 20689 of 2011 to include this new tree, T8. Tree 7 was identified on site as an Acacia elata (Cedar Wattle); T8 is most probably a Melaleuca bracteata. Both of these trees were in existance when the Andrews purchased their property. Both are mature; the Cedar Wattle is showing signs of decline. The Melaleuca is some 3m away from the wattle. The wattle is located roughly in the centre of a garden bed at the rear of the Andrews backyard. The foliage of the wattle partly overhangs the melaleuca.

1. The Andrews property is diagonally opposite the applicants' property and connected by a corner post. It is…