Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. COMMISSIONER: With the goal of restoring views they say they have lost, Nina Zhang and Nalin Wang have applied to the Court seeking the following orders relating to trees on the neighbouring property belonging to The Owners - Strata Plan No 7600:

1) Pruning of three banksias and five brown pines to a level not above the sightline between a standing position on their upper level outdoor terrace and the ridgeline of the respondents' dwelling;

2) Selective pruning of a jacaranda;

3) Annual pruning to maintain the view, in accordance with the pruning described above.

2. The hearing took place onsite in Cremorne, allowing me to observe the trees and the view from the applicants' property. The respondent did not appear, so the hearing proceeded ex parte. I am comfortable that the respondent was served a copy of the application, and that my observations from the applicants' property were sufficient to make this decision. Mr Woolf represented the applicants. Elke Haege Thorvaldson, a consulting arborist, prepared a report for the applicants and gave evidence during the hearing.

Framework for this decision

3. he application is made pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). The trees are on land adjoining the applicants' land. The orders they seek are orders the Court can make at s 14D of the Trees Act. Therefore, relevant issues to be determined in these proceedings are:

* Whether the trees are ones to which Pt 2A of the Trees Act applies: s 14A(1) of the Trees Act.

* Whether the applicants have made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 14E(1).

* Whether the Court can be satisfied that the trees are severely obstructing views from the applicants' dwelling: s 14E(2)(a).

* Whether the Court can be satisfied that the applicants' interests outweigh reasons for not interfering with the trees: s 14E(2)(b).

* If orders are to be made, how consideration of the relevant matters at s 14F of the Trees Act should influence those orders.

Whether Pt 2A of the Trees Act applies to the trees

4. The applicants wish to consider all 10 trees in their application as a single hedge: a tree fern, a jacaranda, three banksias and five brown pines. I do not accept that the trees form a single hedge. I find that the tree fern and the jacaranda are not part of a hedge, while the banksias and brown pines form two separate hedges. To reach this conclusion, I have considered various criteria of these trees, including their morphology, their proximity to each other, and their potential response to pruning. Preston CJ gave examples of criteria that might be considered when determining whether trees are planted so as to form a hedge at [41] of Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192. I also consider the words of Moore SC and Hewett AC at [45] of Wisdom v Payn [2011] NSWLEC 1012:

"...We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198cf4e2f734265e0e245443)

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