Arnold v Persson

[2022] NSWLEC 1270

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arnold v Persson [2022] NSWLEC 1270

Hearing dates:

29 November 2021

Date of orders:

27 May 2022

Decision date:

27 May 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 hedges – palms – whether the trees are planted to form a hedge – obstruction of views – whether the obstruction is severe – balancing the parties’ interests – whether orders should be made

Legislation Cited:

Interpretation Act 1987, s 34

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

Cases Cited:

Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108

Condon v Scott [2021] NSWLEC 1160

Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150

Johnson v Angus [2012] NSWLEC 1207

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

McDougall v Philip [2011] NSWLEC 1280

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)

Category:

Principal judgment

Parties:

Robert Arnold (Applicant)
Jeffrey Persson (First Respondent)
Patricia McIntosh (Second Respondent)

Representation:

Counsel:
G Tsang (Applicant)
P Persson (Self-represented and Agent) (First and Second Respondents)

Solicitors:
Dickinson Lawyers (Applicant)

File Number(s):

2021/209441

Publication restriction:

No

Judgment

Background to the application

1. Acting Commissioner: Robert Arnold (the Applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders relating to six palm trees on an adjoining property in Vaucluse belonging to his neighbours, Patricia and Jeffrey Persson (the Respondents), on the basis that the palms obstruct his views. He seeks an order that the six palms be removed and replaced at the Applicant’s expense; or failing that, an order that four of the palms be removed and replaced at the Applicant’s cost; or failing that, an order that all six palms be pruned every six months.

2. The hearing in these proceedings took place via audio-visual means. Mr Tsang represented the Applicant; Mrs Persson represented herself and her husband. The application lists the second respondent as Patricia McIntosh, but during the hearing she clarified that she uses the surname Persson, so that is the name used throughout this judgment.

The applicant made reasonable effort

3. Under Pt 2A of the Trees Act, at s 14E(1), the Court must not make an order unless it is satisfied that the Applicant has made reasonable effort to reach agreement with the Respondents. Mr Arnold and his wife Zeny Arnold once had an agreement with the Perssons allowing them to prune the Perssons’ trees. After the Perssons ended this arrangement in or around 2018, the Arnolds wrote several times seeking an outcome that would allow the trees to be pruned. For reasons explained in return correspondence, the Perssons were unwilling to prune, or to…