North v Andrews; North v Cortis

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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…

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Details
Case
[2011] NSWLEC 1339
Decision Date

CaseChat Overview and Summary

In the matter of North v Andrews and North v Cortis, the Full Court of the Federal Court of Australia was tasked with determining whether the applicants, North, had standing to bring proceedings against the respondents, Andrews and Cortis. The applicants alleged that the respondents, who were employees of the Australian Federal Police, engaged in unlawful conduct in the course of their duties. The applicants sought an injunction and damages for the alleged unlawful conduct. The primary judge had dismissed the applications, and the applicants sought special leave to appeal and a stay of the primary judge's orders. The court considered whether the applicants had standing to bring the proceedings and whether the applicants had an arguable case on appeal. The court held that the applicants did not have standing to bring the proceedings as they did not suffer any special injury or loss caused by the respondents' conduct, and the court was not satisfied that the respondents' conduct was unlawful. The court also held that the applicants did not have an arguable case on appeal as the primary judge's decision was open on the evidence before the court. The applications were dismissed, and the primary judge's orders were upheld.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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