Singh & anor v Stanford

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: 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. 2 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. 3In 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. 4The 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? 5The applicants have listed 12 trees however they found it difficult to view and identify the species and accurately determine the number of trees. 6An inspection of the trees from the respondent's property during the hearing identified 10 trees. They are numbered from east to west. 7Tree 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. 8The Gum (T1), Callistemons (T2, T8) and Melaleuca (T10) were well established when the respondent purchased her property in 1995. 9In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants self-seeded or are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed. 10'So as to form a hedge' has also 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". 11In this matter, after considering the species, likely origins, ages and arrangements of the ten trees I find that only trees 4, 5 and 6 comply with s 14A(1)(a). Trees 1, 2, 8, and 10 are widely spaced individual specimens. Tree 9, while planted at the same time as Trees 4, 5, and 6 is many metres away and reads as an individual plant. It is highly probable that trees 3 and 7 are self-seeded. 12As trees 4, 5 and 6 are in excess of 2.5m the Court can consider the next relevant question - is there a severe obstruction of sunlight or views as a consequence of trees 4, 5 and 6? 13Section 14E(2) states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.