Shearer v Orchard

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shearer & anor v Orchard & anor [2017] NSWLEC 1146
Hearing dates:	23 March 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge – obstruction of views; majority of trees not trees to which the Part applies
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Gary Shearer and Tracey Shearer (Applicants) Alan Orchard and Linda Orchard (Respondents)
Representation:	Applicants: Mr Williams (Barrister) Respondents: Ms L Orchard (Litigant in person) Solicitors: Applicants: CBD Law
File Number(s):	377045 of 2016

judgment

1. COMMISSIONER: The applicants have applied under s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking either the removal or pruning to 2.5m of up to 29 trees growing on the respondents’ Hardys Bay property. The trees are listed in a report prepared by Mr Mark Bury, an arborist.

2. The orders are sought on the applicants’ contention that the trees severely obstruct views of Brisbane Water from their dwelling.

3. The respondents state that there is no hedging of their trees but rather an informal pattern of trees which comprise largely self-sown trees. They contend that the only trees they have planted are a number of Port Jackson Pines (Callitris rhomboidea), a locally occurring species, which they planted in 2000 shortly after the applicants completed the construction of their dwelling.

4. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged. The sequential nature of these tests is explained in some detail in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122.

5. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge [emphasis added].

6. The applicants engaged Ms Elizabeth Ashby, an ecologist, to inspect the trees in Mr Bury’s report and, amongst other things, indicate their provenance and likely source, that is – naturally occurring, self-sown, or probably planted. Of the 29 trees, for the reasons she provides in her report, Ms Ashby considers that 21 are probably planted, seven are naturally occurring, and one large Spotted Gum is dead. The ‘possibly planted’ trees include a number of Silky Oaks (Grevillea robusta) and Illawarra Flame Trees (Brachychiton acerifolius).

7. In oral evidence, Ms Ashby agreed that both Grevillea robusta and Brachychiton acerifolius are species known to self-seed and in some localities are classed as environmental weeds.

8. The respondents indicated large specimens of both species growing on nearby properties. They stress that apart from the Port Jackson Pines, the trees are self-sown.

9. Mr Williams, for the applicants, submits that there is a sufficient linear relationship between the trees, as well as an interlocking and continuous canopy that has the effect of forming a…