Wei v Clifton

[2014] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wei v Clifton [2014] NSWLEC 1227
Hearing dates:	3 November 2014
Decision date:	03 November 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight; Part 2A does not apply to individual specimens
Legislation Cited:	Trees (Disputes Between neighbours) Act 2006
Cases Cited:	Johnson v Angus [2012] NSWLEC 192 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Ms D Wei (Applicant) Mr K Clifton (Respondent)
Representation:	Applicant: Ms D Wei (Litigant in Person) Respondent: Ms Clifton (Agent)
File Number(s):	20554 of 2014

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 s 14B Part 2A of the Trees (Disputes Between neighbours) Act 2006 by an owner of a property in Campsie against the owner of trees growing on an adjoining property.

1. Section 14B states:

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.

1. The applicant is seeking orders for the pruning of the branches of a Fig tree back beyond the dividing fence in order to remedy a severe obstruction of sunlight to windows of the applicant's dwelling and improvement of a view from the dwelling. This work is to be carried out by the respondent or the applicant at the respondent's expense. The applicant is also seeking compensation for any legal fees.

1. In regards to this last element of the claim, Commissioners do not have the jurisdiction to award such costs and a separate Notice of Motion must be made and then heard by a Registrar or Judge of the Court.

1. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the tree/trees in question.

1. The application claim form includes an aerial photograph identifying the relevant properties. There are two large trees on the respondent's property - the one closest to the applicant's property is labelled 'A', the other is labelled 'OV1'. The answers to the questions in the claim form refer to only one of the trees, tree 'A' a Ficus macrocarpa var. hillii (Hill's Weeping Fig). The other tree, a large Liquidambar, is not described but it is referred to in answer to question 12, - anything other than the hedge that contributes to the loss of a view.

1. Section 14A(1) states:

(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).

1. Therefore, there must be at least two trees planted with the intent of forming a hedge and remaining as such (see Johnson v Angus [2012] NSWLEC 192). 'So as to form a hedge' has been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge".

1. During the inspection of the trees from the respondent's property, it was clear that the Fig tree is a single specimen. The Fig is growing against the western side of a shed at the rear of the respondent's property. The Liquidambar is at least 10 metres to the east of the Fig and separated from it by two sheds. Therefore, in my opinion the Fig and the Liquidambar are two individual specimens and do not form a hedge. I am also satisfied that when viewed from the respondent's property, a casual observer would not perceive the two trees as a 'hedge'.

1. Therefore as the tree the subject of this application is not a tree to which Part 2A applies, the Court has no jurisdiction to consider the matter any further and the application must be dismissed.

1. The Orders of the Court are:

(1)   The application is dismissed.

_______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 04 November 2014