Schiff v Shnier

[2019] NSWLEC 1535

Land and Environment Court

New South Wales

Medium Neutral Citation:	Schiff v Shnier [2019] NSWLEC 1535
Hearing dates:	31 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – bamboo – obstruction of views – the trees are not on land adjoining the applicant’s land
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Dive v Lin [2017] NSWLEC 1348 Dive v Lin and Liu [2017] NSWLEC 153
Texts Cited:	Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (November 2009)
Category:	Principal judgment
Parties:	Barbara Schiff (Applicant) Michael Shnier (First Respondent) Mandy Shnier (Second Respondent)
Representation:	Counsel: B Schiff (Litigant in person) (Applicant) S Nash (Respondents)   Solicitors: Boskovitz Lawyers (Respondents)
File Number(s):	2019/259244
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The application

1. Barbara Schiff (‘the applicant’) has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for bamboo and other vegetation to be pruned on a nearby property in Dover Heights. The bamboo grows on land owned by Michael and Mandy Shnier (‘the respondents’).

2. Dr Schiff’s property is at number 6 in the street, the respondents’ at number 10. The properties are all rectangular, in series along the street. The Schiff property and the Shnier property are therefore separated by the property at number 8. Tenants at number 8, between the two properties, have written a letter supporting Dr Schiff’s application.

Trees must be on land adjoining the applicant’s land

3. At the outset of today’s hearing, I raised the issue of the spatial relationship between the applicant’s and respondents’ properties.

4. The Trees Act provides a limited jurisdiction for affected neighbours to resolve tree disputes. At s 14B, the Trees Act limits the jurisdiction to trees on land adjoining an applicant’s land (with my emphasis):

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

5. In Dive v Lin [2017] NSWLEC 1348 (Dive v Lin), I found I could not make orders for a Part 2 application concerning damage because the tree was not principally on land adjoining the applicant’s. The wording requiring trees to be on land adjoining the applicant’s land is similar in both Parts 2 and 2A. In Part 2, s 7 similarly restricts the jurisdiction (again, with my emphasis):

7 Application to Court by affected land owner

An owner of land may apply to…