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…