Smith v Gregory

[2022] NSWLEC 1449

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Smith v Gregory [2022] NSWLEC 1449

Hearing dates:

23 August 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring trees – adjoining land – whether the trees are planted to form a hedge – obstruction of views – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

Wisdom v Payn [2011] NSWLEC 1012

Category:

Principal judgment

Parties:

Robert Smith (First Applicant)
Julia Smith (Second Applicant)
Richard Gregory (First Respondent)
Mary Gregory (Second Respondent)

Representation:

Counsel:
R Smith (Self-represented) (First Applicant)
J Smith (Self-represented) (Second Applicant)
R Gregory (Self-represented) (Both Respondents)

File Number(s):

2022/141005

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: On a steep north-facing slope in Avalon Beach, Richard and Mary Gregory (the Respondents) have a garden with palms, tree ferns and other plants. Upslope to their south, the property belonging to Julia and Robert Smith (the Applicants) is close to the top of a natural ridge. From their dwelling, the Smiths have views to the north and northeast, over the Gregorys’ property, to Careel Bay, the Palm Beach Peninsular and beyond.

2. The Smiths have applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Gregorys to maintain trees in their front garden to a height no greater than 2.5 metres.

The hearing

3. The final hearing in these proceedings took place onsite, with parties self-represented. No expert reports were in evidence.

Framework for this decision

4. At s 14A, Pt 2A of the Trees Act only applies to certain trees.

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.

5. At s 14B of the Trees Act, those trees must be on adjoining land.

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

6. Before the Court can make any orders, the jurisdictional tests at s 14E of the Trees Act must be satisfied.

14E…