Blau v Levi - [2010] NSWLEC 1371

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Blau v Levi [2010] NSWLEC 1371

PARTIES:
APPLICANT
A Blau

RESPONDENT
C Levi

FILE NUMBER(S):
20641 of 2010

CATCHWORDS:
TREES (NEIGHBOURS) :- What constitutes a hedge; plants in pots that consituted a hedge at time of application moved prior to hearing; moved plants no longer a hedge

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006
Antisocial Behaviour Act 2003 [UK]
Imperial Acts Application Act 1969
Interpretation Act 1987

CASES CITED:
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429

CORAM:
Moore SCFakes C

DATES OF HEARING:
14 bDecember 2010

EX TEMPORE DATE:
14 December 2010

LEGAL REPRESENTATIVES

APPLICANT
Mr M Seymour, barrister
INSTRUCTED BY
Michael Rogers & Co

RESPONDENT
Mr G Christmas, solicitor
Apex Planning and Environmental Law

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES
MOORE SC
FAKES C

14 December 2010
10/20641 Blau v Levi

JUDGMENT

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

SENIOR COMMISSIONER: These proceedings concern an application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerning a number of elements of vegetation growing on the respondent's property in Rose Bay.
During the course of the view of the properties, a number of matters arose that needed to be dealt with, at the commencement of our consideration of these matters, to clarify the matters that were the subject of the application. A number of preliminary rulings were given by us during the course of the view regarding a number of applications for leave to amend; some granted, some refused.
In order to clarify that with which we are dealing, we should outline those matters. First, the original application lodged by the applicant proposed orders with respect to some plantings of bamboo at the rear of the respondent's property. That bamboo, it transpires, is located on the common property of the strata plan within which the respondent's apartment is located and, as a consequence – there being no application to the Court to which that body corporate is a respondent – it is necessary for us to dismiss that element of the application.
The second vegetation element in the application is that which is referred on p 23 of the bundle comprising the applicant's materials. This vegetation is what was described as a Buxus hedge approximately 2 metres high and growing rapidly. That hedge, located at natural ground level on a portion of courtyard area at a lower level of the respondent's property is, in fact, a Murraya hedge that is in excess of 2.5 metres high. It is, for the purposes of s 14A(1)(a) and (b) of the Trees Act, undoubtedly two or more trees planted in the ground forming a hedge and rising to a height of at least 2.5 metres above existing ground level. That element of the necessary jurisdictional tests with…

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: [2010] NSWLEC 1371
Decision Date: 14 December 2010

CaseChat Overview and Summary

The case of Blau v Levi involved an application under Part 2A of the Trees (Disputes Between Neighbours) Act 2006, concerning vegetation on the respondent's property in Rose Bay. The applicant sought orders regarding bamboo, a Murraya hedge, and containerised plants on the respondent's balcony. The central issues were whether the vegetation constituted a hedge, if the trees severely obstructed a view from the applicant's property, and if so, what orders should be made.

The Court began by clarifying the scope of the application, noting that the bamboo was located on common property and therefore dismissing that part of the application. The Murraya hedge was deemed a hedge under the Act, but the Court found it did not obstruct the applicant's view, thus dismissing the application regarding it. The containerised plants on the balcony were not considered a hedge, also dismissing the application for them. However, the plants in the planter box beyond the glass balustrade were considered a hedge and were found to severely obstruct the applicant's view, leading to the partial upholding of the application for them.

The Court ordered the respondent to hire an arborist or horticulturist to prune the plants in the planter box to a point 100 mm below the height of the parapet of the respondent's dwelling, to be completed within 30 days. After compliance, any plants outside the glass balustrade were to be pruned not to exceed the height of the parapet.

The orders of the Court were as follows: the application regarding the bamboo was dismissed; the application regarding the Murraya hedge was dismissed; the application regarding the containerised plants on the balcony was dismissed; the application regarding the containerised plants on the planter box beyond the glass balustrade was upheld in part; the respondent was to engage and pay for an AQF level 3 arborist or horticulturist to prune the plants in the planter box; this work was to be completed within 30 days; and after compliance, any plants outside the glass balustrade were to be pruned to not exceed the height of the parapet of the respondent's dwelling.

Orders