Sendro v Goodings

[2020] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sendro v Goodings [2020] NSWLEC 1370

Hearing dates:

06 August 2020

Date of orders:

06 August 2020

Decision date:

06 August 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees do not constitute a hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Awad v Hardie (No.3) [2012] NSWLEC 1067

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Hinde v Anderson [2009] NSWLEC 1148

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

McCallum v Riordan [2011] NSWLEC 1009

Sendro v Goodings [2018] NSWLEC 1454

Texts Cited:

Land and Environment Court of New South Wales, Annotated Trees Act 2019-2020

Category:

Principal judgment

Parties:

Thomas Sendro (Applicant)
Cathy Goodings (First Respondent)
Simon Goodings (Second Respondent)

Representation:

T Sendro (Litigant in person) (Applicant)
C Goodings (Litigant in person) (First Respondent)
S Goodings (Litigant in person) (Second Respondent)

File Number(s):

2020/153158

Publication restriction:

No

Judgment

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

1. COMMISSIONER: Mr Sendro submitted an application, pursuant to section 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), on the basis that a hedge in his adjacent neighbour’s property severely restricts views.

2. The trees at issue are one Brachychiton acerifolius (Illawarra Flame tree) and one Olea europaea subsp. cuspidata (African Olive). The locations from which Mr Sendro claims his view is obstructed, are the balcony adjacent to his main living area (V1) and a bedroom, on the level below (V2).

The onsite hearing

3. From V1, where the hearing was located, Mr Sendro enjoys commanding harbour views sweeping from the north-west to the north-east, with no restriction on views of the water, nor the land-water interface.

4. Mr Sendro seeks orders for the African Olive to be removed, and the Illawarra Flame tree pruned, or for both trees to be pruned, so that he regains the views that were available in the distant past, or after the respondents pruned the trees to reduce their height in 2016. It is difficult to see how the presence of these two trees could make more than a minor impact, far less than the required threshold of severe.

5. Mr Goodings tabled Sendro v Goodings [2018] NSWLEC 1454, which dealt with the same claim of severe obstruction of views. In that case, Galwey AC dismissed the application on the basis that the trees did not constitute a hedge under the Act, based on commentary by Preston CJ in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [27]-[28]. For Mr Sendro’s 2018 application, these two trees, plus a third dead tree were considered. The dead tree has been removed in the interim. Otherwise the circumstances appear not to have changed to any material degree.

6. The following commentary is an extract from pp 10-11 of the Annotated Trees Act, readily available on the Court’s website:

“When the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148).

…

However, it is not possible to make a further application if the circumstances have not changed (McCallum v Riordan & anor [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067).

…

Further, it is not appropriate to make a second application in the hope that a different Commissioner will be appointed to hear the matter and thus might give a different decision to that made on the first application.”

7. Based on the facts of this matter, and these precedents, Mr Sendro’s application is doomed to fail, and there are other considerations that reinforce this position.

Jurisdictional requirements

8. In Part 2A matters of the Act, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

9. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?

10. Section 14A(1) states:

14A Application of Part

(1) This Part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

11. Mr Sendro attempted to persuade the Court that the four main stems of the African Olive should be considered as four trees, when the observed facts unambiguously display that it is a single tree.

12. Even if he had been successful in his quest to convince the Court, on the basis of their appearance, that these two trees comprised a hedge, the African Olive was highly unlikely to have been planted, as required by s 14A(1)(b). This species is listed as a weed by the New South Wales Department of Primary industries, it has not been available for sale in nurseries during my horticulture career, which spans four decades, it is present in large numbers in parks and reserves in close proximity to the applicant’s property, and its seed is readily spread by birds.

Conclusions

13. Mr Sendro repeatedly made personal attacks on the respondents, claiming that they were being vexatious in refusing his demands to have their trees pruned, as they had agreed to do so in 2016. There is some irony to this claim.

14. Mr Sendro displayed an unusual sense of entitlement to compel his neighbours to prune their trees, based primarily on some nebulous notion that it was ‘unfair’ for them to do otherwise. Clearly, and somewhat obviously, no such right exists, and it is certainly not a basis for a remedy available under the Act.

15. Mr Sendro has wasted the Court’s time, and that of Mr and Mrs Goodings’. The circumstances informing the finding that these trees do not form a hedge under the Act cannot change over time.

16. Should Mr Sendro again make an application under Part 2A of the Act against the Goodings, or any subsequent owner of their property, on the basis that these two trees constitute a hedge, such application should not be entertained.

Orders

17. The Court orders that:

1. The application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 17 August 2020