Smart and anor v Mann and anor

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smart & anor v Mann & anor [2013] NSWLEC 1179
Hearing dates:	24 September 2013
Decision date:	24 September 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; balancing of interests
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Hinde v Anderson & anor [2009] NSWLEC 1148 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	P & S Smart (Applicants) G & L Mann (Respondents)
Representation:	Applicants: P & S Smart (Litigants in person) Respondents: R.J Baxter (Solicitor) Russell J Baxter Solicitor
File Number(s):	20498 of 2013

Judgment

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

1. COMMISSIONER: The applicants purchased their elevated block of land in Tweed Heads West in 1999. The house they built was situated to take advantage of views from the rear of the property to the north through to the east of the distant ocean and coastal landscape - essentially from Tugan to Fingal Head. The front of the property faces the distant Border Ranges to the west.

1. The applicants contend that palm trees planted by the respondents in 2002 severely obstruct both sunlight to windows of their dwelling and views from their dwelling.

1. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal or reduction and subsequent maintenance of the trees to a maximum height of 2.5m.

1. The respondents have removed three of the 13 palms subject to the application and do not wish to take any further action as they value the remaining trees for the privacy they afford their dwelling.

Are the trees planted so as to form a hedge?

1. In applications under Part 2A there are a number of jurisdictional tests that must be satisfied sequentially.

1. The first jurisdictional test is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that have been planted so as to form a hedge.

1. The trees the subject of the application are 13 palms of mixed species planted along the southern and eastern perimeters of the swimming pool at the rear of the respondents' property.

1. Trees 1-3 were Golden Cane Palms removed in response to the lodging of the application before the Court. These trees were located along the southern boundary of the respondents' property - the common boundary between the parties' properties.

1. Tree 4 - a small Majestic Palm remains towards the south-eastern end of the boundary. The remaining trees are a mixture of Golden Cane and Bangalow Palms along the eastern boundary.

1. I am prepared to accept that while the palms do not present as a solid, uniform wall of a hedge in the classic sense, the Court has allowed similar linear and closely spaced plantings of clumping and other palms,…