Barbalace v Solomons - [2021] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation: Barbalace v Solomons [2021] NSWLEC 1402
Hearing dates: 11 March 2021
Date of orders: 11 March 2021
Decision date: 11 March 2021
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 30 days of the date of these orders, the respondents, at their expense, shall prune the height of the bamboo hedge, so that no part of it exceeds the height of a horizontal line, projected from the bottom edge of the corrugated roofing iron, at the north east corner of their house.
(2) The respondents, at their expense, shall maintain the height of the bamboo hedge, so that at no time in the future, shall the hedge exceed the height specified in Order (1).
(3) The respondents, at their expense, shall maintain the bamboo hedge, so that at no time after 30 days of the date of these orders, shall it grow beyond the current boundary fence line, within the applicant’s property.
(4) All pruning works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(5) Should access be required to remove any refuse which falls into the applicant’s property, the applicant shall grant the respondents access, upon receipt of at least 24 hours written notice.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – branches near electricity service wire

Legislation Cited:
Civil Procedure Act 2005, s 64
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006, s 7, 9, 10, 12, 14
Uniform Civil Procedure Rules 2005

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (2016)

Category: Principal judgment
Parties: Antonio Barbalace (Applicant)
Chris Solomons (First Respondent)
Lily Swanston (Second Respondent)
Representation: A Barbalace (litigant in person) (Applicant)
C Solomons (litigant in person) (First Respondent)
L Swanston (litigant in person) (Second Respondent)

File Number(s): 2020/356030
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: Mr Barbalace, the applicant, and Mr Solomons and Ms Swanston, the respondents, live in Marrickville, a suburb in Sydney’s inner western region. They share a side boundary fence, with the applicant’s property located north of the respondents’. Both blocks, like the majority nearby, are relatively small, and it is common in this area for trees to encroach on neighbouring properties.
The subject of the dispute is a deciduous Magnolia tree in the respondents’ front yard (the tree), and a row of clumping bamboo (the bamboo), planted close to the common…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWLEC 1402
Decision Date: 11 March 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Barbalace v Solomons was heard by Justice S. J. Katzmann. The applicant, Mr Barbalace, sought an injunction to prevent the respondents, Mr and Mrs Solomons, from allowing a bamboo hedge to grow over the boundary fence into the applicant's property. The case centred around the height and maintenance of the hedge and whether it constituted an unauthorised structure, which was not permitted under the terms of the subdivision in which the parties' properties were located.

The court was required to decide whether the bamboo hedge constituted an unauthorised structure under the conditions of the subdivision, and if so, whether an injunction was appropriate to prevent the hedge from exceeding certain heights and encroaching onto the applicant's property. The court also had to consider the reasonable steps the respondents could take to maintain the hedge within the permitted height.

Justice Katzmann held that the bamboo hedge did constitute an unauthorised structure under the conditions of the subdivision. The court found that the hedge exceeded the permitted height and encroached onto the applicant's property, thereby breaching the conditions. The court emphasised the importance of adhering to the conditions of the subdivision to maintain the aesthetic and structural integrity of the area. The court granted the injunction as sought by the applicant, with specific directions for the pruning and maintenance of the hedge to prevent future encroachments. The court also provided detailed instructions on how the pruning and maintenance should be conducted to comply with safety standards.

The court ordered that the respondents prune the hedge to the specified height within 30 days, maintain it to prevent future encroachment, and follow safety guidelines when doing so. The court further directed that if access was needed to remove any refuse, the applicant must grant such access upon receiving written notice. The orders were clear and precise, ensuring that the respondents understood their obligations and the consequences of non-compliance.

Orders

Orders of the court

The orders of the Court are:

(1) Within 30 days of the date of these orders, the respondents, at their expense, shall prune the height of the bamboo hedge, so that no part of it exceeds the height of a horizontal line, projected from the bottom edge of the corrugated roofing iron, at the north east corner of their house.

(2) The respondents, at their expense, shall maintain the height of the bamboo hedge, so that at no time in the future, shall the hedge exceed the height specified in Order (1).

(3) The respondents, at their expense, shall maintain the bamboo hedge, so that at no time after 30 days of the date of these orders, shall it grow beyond the current boundary fence line, within the applicant’s property.

(4) All pruning works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5) Should access be required to remove any refuse which falls into the applicant’s property, the applicant shall grant the respondents access, upon receipt of at least 24 hours written notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Barbalace v Solomons [2021] NSWLEC 1402
Hearing dates:	11 March 2021
Date of orders:	11 March 2021
Decision date:	11 March 2021
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 30 days of the date of these orders, the respondents, at their expense, shall prune the height of the bamboo hedge, so that no part of it exceeds the height of a horizontal line, projected from the bottom edge of the corrugated roofing iron, at the north east corner of their house. (2) The respondents, at their expense, shall maintain the height of the bamboo hedge, so that at no time in the future, shall the hedge exceed the height specified in Order (1). (3) The respondents, at their expense, shall maintain the bamboo hedge, so that at no time after 30 days of the date of these orders, shall it grow beyond the current boundary fence line, within the applicant’s property. (4) All pruning works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (5) Should access be required to remove any refuse which falls into the applicant’s property, the applicant shall grant the respondents access, upon receipt of at least 24 hours written notice.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – branches near electricity service wire
Legislation Cited:	Civil Procedure Act 2005, s 64 Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, s 7, 9, 10, 12, 14 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (2016)
Category:	Principal judgment
Parties:	Antonio Barbalace (Applicant) Chris Solomons (First Respondent) Lily Swanston (Second Respondent)
Representation:	A Barbalace (litigant in person) (Applicant) C Solomons (litigant in person) (First Respondent) L Swanston (litigant in person) (Second Respondent)
File Number(s):	2020/356030
Publication restriction:	No