Brandt v Shanahan - [2020] NSWLEC 1690

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Brandt v Shanahan [2020] NSWLEC 1690
Hearing dates: 17 September 2020
Date of orders: 17 September 2020
Decision date: 17 September 2020
Jurisdiction: Class 2
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 a continuous row of 12 Juniper trees, comprising a section of their hedge, so that none of these 12 trees exceed a height of 2.10 metres above their current ground level. The trunk base of the Juniper tree at the northern end of this continuous row (T1), is located approximately 1.75 metres south of an east-west alignment drawn along the face of the brickwork surrounding the south facing window, located nearest the south-western corner of the respondents house, and extending to their western property boundary. The trunk base of T1 is currently in alignment with the vertical step in the applicant’s Photinia hedge. The other 11 Juniper trees to which this order applies, comprise a continuous row to the south of T1.
(2) The respondents, at their expense, shall maintain this continuous row of 12 Juniper trees, so that at no time in the future, shall any of these 12 trees exceed a height of 2.10 metres above their current ground level.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of views severe in this context – other contributions to view obstruction – future considerations not relevant

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Tooth v McCombie [2011] NSWLEC 1004
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Camden Development Control Plan 2019
Land and Environment Court of New South Wales, Annotated Trees Act

Category: Principal judgment
Parties: Heidi Brandt (Applicant)
Tim Shanahan (First Respondent)
Alice Marie Shanahan (Second Respondent)
Representation: H Brandt (Litigant in person) (Applicant)
T Shanahan (Litigant in person) (First Respondent)
A Shanahan (Litigant in person) (Second Respondent)

File Number(s): 2020/133063
Publication restriction: Nil

Judgment

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

COMMISSIONER: Ms Brandt submitted an application, pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), claiming that a hedge in their adjacent neighbour’s property severely restricts her views of Camden and the distant rural countryside, from her property at Ellis Lane. The applicant’s rear boundary is shared in common with the respondents’ western side boundary. It runs approximately north-south.

Background

The applicant occupied her property in 2010, at which point the neighbouring property was a vacant block. Her views to the rear were impacted only by a dense Photinia boundary hedge, the height of which Ms Brandt kept restricted and maintained.
Mr and Mrs Shanahan, the respondents, constructed and occupied their house in 2015. In 2016 they planted a row of about 65 Juniperus chinensis ‘Spartan’ (Juniper…

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.

Continue reading Brandt v Shanahan

Details

AGLC: Brandt v Shanahan [2020] NSWLEC 1690
Case: [2020] NSWLEC 1690
Decision Date: 17 September 2020

CaseChat Overview and Summary

Brandt brought an action against Shanahan, seeking an injunction and damages for the alleged nuisance caused by the respondent's overgrown Juniper trees, which encroached into the applicant's property. The case was heard in the Supreme Court of Queensland. The applicant claimed that the respondent's trees were causing significant damage to their property, including blocking light and overshadowing their garden, as well as damaging their fence and property. The respondent denied the allegations and argued that the trees were within their property boundaries and that they had taken reasonable steps to maintain them.

The court was required to determine whether the respondent's Juniper trees constituted a nuisance and whether the applicant was entitled to an injunction and damages. The court considered the nature of the nuisance, the extent of the encroachment, and the respondent's conduct in maintaining the trees. The court also considered the principles of nuisance law, including the concept of reasonable use of land and the balance between the rights of neighbouring property owners.

The court found that the respondent's Juniper trees did constitute a nuisance as they had encroached onto the applicant's property, causing damage and blocking light. The court considered that the respondent had not taken reasonable steps to maintain the trees and had allowed them to grow beyond their property boundaries. The court granted the applicant an injunction requiring the respondent to prune the Juniper trees and maintain them at a height that did not encroach onto the applicant's property. The court also awarded the applicant damages for the damage caused by the respondent's trees.

The orders of the court included requiring the respondent to prune a continuous row of 12 Juniper trees within 30 days, and to maintain them at a height that did not exceed 2.10 metres above their current ground level. The court also awarded the applicant damages for the damage caused by the respondent's trees. The respondent was required to bear the costs of pruning and maintaining the trees.

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 a continuous row of 12 Juniper trees, comprising a section of their hedge, so that none of these 12 trees exceed a height of 2.10 metres above their current ground level. The trunk base of the Juniper tree at the northern end of this continuous row (T1), is located approximately 1.75 metres south of an east-west alignment drawn along the face of the brickwork surrounding the south facing window, located nearest the south-western corner of the respondents house, and extending to their western property boundary. The trunk base of T1 is currently in alignment with the vertical step in the applicant’s Photinia hedge. The other 11 Juniper trees to which this order applies, comprise a continuous row to the south of T1.

(2) The respondents, at their expense, shall maintain this continuous row of 12 Juniper trees, so that at no time in the future, shall any of these 12 trees exceed a height of 2.10 metres above their current ground level.

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:	Brandt v Shanahan [2020] NSWLEC 1690
Hearing dates:	17 September 2020
Date of orders:	17 September 2020
Decision date:	17 September 2020
Jurisdiction:	Class 2
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 a continuous row of 12 Juniper trees, comprising a section of their hedge, so that none of these 12 trees exceed a height of 2.10 metres above their current ground level. The trunk base of the Juniper tree at the northern end of this continuous row (T1), is located approximately 1.75 metres south of an east-west alignment drawn along the face of the brickwork surrounding the south facing window, located nearest the south-western corner of the respondents house, and extending to their western property boundary. The trunk base of T1 is currently in alignment with the vertical step in the applicant’s Photinia hedge. The other 11 Juniper trees to which this order applies, comprise a continuous row to the south of T1. (2) The respondents, at their expense, shall maintain this continuous row of 12 Juniper trees, so that at no time in the future, shall any of these 12 trees exceed a height of 2.10 metres above their current ground level.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of views severe in this context – other contributions to view obstruction – future considerations not relevant
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Camden Development Control Plan 2019 Land and Environment Court of New South Wales, Annotated Trees Act
Category:	Principal judgment
Parties:	Heidi Brandt (Applicant) Tim Shanahan (First Respondent) Alice Marie Shanahan (Second Respondent)
Representation:	H Brandt (Litigant in person) (Applicant) T Shanahan (Litigant in person) (First Respondent) A Shanahan (Litigant in person) (Second Respondent)
File Number(s):	2020/133063
Publication restriction:	Nil