Sendro v Goodings

[2018] NSWLEC 1454

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sendro v Goodings [2018] NSWLEC 1454
Hearing dates:	20 August 2018
Date of orders:	20 August 2018
Decision date:	20 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – obstruction of views – whether the trees form a hedge
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Johnson v Angus [2012] NSWLEC 192
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Thomas Sendro (Applicant) Cathy Goodings (First Respondent) Simon Goodings (Second Respondent)
Representation:	T Sendro, litigant in person (Applicant) C and S Goodings, litigants in person (Respondents)
File Number(s):	2018/129394
Publication restriction:	No

Judgment

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

Background

1. Thomas Sendro (‘the applicant’) enjoys harbour views from several levels of his Bellevue Hill dwelling. Downslope from his property, trees grow on the property owned by Cathy and Simon Goodings (‘the respondents’). Mr Sendro unsuccessfully attempted to persuade the Goodings to remove or prune the trees so that they do not obstruct his views. He applied to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking removal of a dead tree (species unknown), removal of an African Olive tree and reduction pruning of an Illawarra Flame Tree.

2. The Goodings had removed the dead tree by the time of the onsite hearing.

Do the trees form a hedge?

3. The Trees Act applies only to certain trees, described at s 14A:

14A Application of Part

(1) This Part applies only to groups of 2 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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

4. In Johnson v Angus [2012] NSWLEC 192 at [27], [28], Preston CJ shed further light on the wording used in s 14A(1)(a):

27    I return to my earlier observation that the phrase 'trees that are planted' is in the simple present tense. The simple present tense can be used to indicate that a fact or state of affairs was true before, is true now and will be true in the future; that an action happens all the time or habitually, in the past, present or future; or to make generalisations about people or things.

28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.

5. The Goodings have owned their property since…