Singh v Stanford

[2014] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:	Singh & anor v Stanford [2014] NSWLEC 1014
Hearing dates:	31 January 2014
Decision date:	31 January 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part - see [27]
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight, obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Johnson v Angus [2012] NSWLEC 192 McDougall v Philip [2011] NSWLEC 1280 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr J Singh and Ms V Nicotera (Applicants) Ms R Stanford (Respondent)
Representation:	Applicants: Mr J Singh and Ms V Nicotera (Litigants in person) Respondent: Mr J Noonan (Agent)
File Number(s):	20856 of 2013

Judgment

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

1. COMMISSIONER: This is an application made under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Coffs Harbour against the owner of trees growing on an adjoining property.

1. The applicants contend that 12 trees growing along the northern boundary of the respondent's property severely obstruct sunlight to several windows of their dwelling and severely obstruct views from their dwelling. They have applied for orders to reduce the height of the trees to 2.5m with their subsequent maintenance at that height.

1. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied before the Court has the power under s 14D to make any orders it thinks fit.

1. The first of these tests is satisfaction of s 14A(1)(a), which essentially asks the question - are the trees about which the application is made, planted so as to form a hedge?

1. The applicants have listed 12 trees however they found it difficult to view and identify the species and accurately determine the number of trees.

1. An inspection of the trees from the respondent's property during the hearing identified 10 trees. They are numbered from east to west.

1. Tree 1 (T1) is a mature and well-established Corymbia citriodora (Lemon-scented Gum). Some four metres to the west is a very large and mature Callistemon viminalis (Bottlebrush) (T2). Tree 3 is an unknown species not planted by the respondent. Its position at the base of T2 suggests it is probably self-sown. Trees 4, 5 and 6 are Duranta erecta planted by the respondent in 2001. Tree 7 is a Lillypilly not planted by the respondent and growing near the base of T8, another large and mature Callistemon. Like T3, it is probable than T7 is also self-sown. Tree 9 is another Duranta planted by the respondent in 2001 between T9 and T10. Tree 10 is a mature Melaleuca sp., possibly M. bracteata.

1. The Gum (T1), Callistemons (T2, T8) and Melaleuca (T10) were well established when the respondent purchased her property in 1995.

1. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a).…