Coleman v Scern; Dunn v Scern - [2011] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation: Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146
Hearing dates: 9 May 2011
Decision date: 10 May 2011
Jurisdiction: Class 2
Before: Moore SC; Hewett AC
Decision:
In Matter No: 21041 of 2010, the application is dismissed.
In Matter No: 21040 of 2010:
1.With respect to the group of four Cypress trees located on the southern boundary of the respondent's property at the approximate mid point of that boundary, the respondent is ordered to prune, within thirty days, those trees to a height not exceeding 4.5 m above ground level at the base of the trunks of those trees.
2.The respondent is to maintain those four trees, pruned so that at no time in the future do they exceed a height of 4.7 m above the ground level at the base of the trunks of those trees.
3.With respect to the trees across the eastern boundary, the respondent is to prune those to a height of 5 m above the existing natural ground level for each of those trees at the point where the trunk enters the ground.
4.The pruning in (3) is to be maintained so that at no time in the future do any of those trees exceed a height of 5.2 m above the height required for the initial pruning.
5.All pruning of the trees on the southern and eastern boundaries of the property is be carried out within thirty days of these orders.
6.The pruning in (1) to (4) is to be conducted by an arborist with AQF level 3 qualifications and appropriate WorkCover insurances.
7.At the time the pruning in (3) is to be carried out, the respondent shall arrange for a wildlife carer of an organisation such as WIRES or similar be present at the time of the pruning in order to be able to undertake a capture, trap and release for the possum that appears to be resident in the southern end of those trees.
8.To the extent that it may be necessary for the person carrying out of the pruning of the trees in (3) and (4) to access the air space of the applicants' property for the purposes of effecting the pruning to the trees on the eastern boundary, such access is required to be given by the applicants on reasonable notice, at a reasonable hour of the day, and subject to the applicants having the right to supervise that access if it is required.
9.If for some reason, it is necessary for there to be physical access (other than access to the air space) to the applicants' property for the purposes of giving effect to the pruning along the eastern boundary, physical access is to be made available on reasonable notice, at a reasonable hour of the day, and with the applicants having the opportunity to supervise that access if it were to be required.
10.The pruning and the wildlife rescue costs are to be met by the respondent.

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: [2011] NSWLEC 1146
Decision Date: 10 May 2011

CaseChat Overview and Summary

The applicants in this matter brought proceedings against the respondent under the Trees (Disputes Between Neighbours) Act 2006, seeking orders for the pruning of trees on the respondent's property and access to the applicants' property for the purposes of accessing the trees on the eastern boundary of the respondent's property. The applicants alleged that the trees were growing into their property, blocking light, and obstructing their view. The respondents argued that the applicants had no entitlement to access their property to prune the trees on the eastern boundary, and that the trees were not causing any issues. The court was required to determine whether the applicants were entitled to an order for the pruning of the trees on the respondent's property and, if so, what terms and conditions should apply to any such order. The court was also required to determine whether the applicants were entitled to access to their property for the purposes of pruning the trees on the eastern boundary.

The court held that the applicants were entitled to an order for the pruning of the trees on the respondent's property. The court found that the trees were obstructing the applicants' view and blocking light into their property, and that the respondent had failed to take reasonable steps to prevent the trees from growing into the applicants' property. The court held that the applicants were entitled to an order for the pruning of the trees on the respondent's property, with specific terms and conditions to be met by the respondent. The court also held that the applicants were entitled to access to their property for the purposes of pruning the trees on the eastern boundary, subject to certain terms and conditions. The court held that the respondent was required to meet the costs of the pruning and any wildlife rescue required during the pruning. The court also held that if the respondent failed to carry out any of the orders for pruning or wildlife rescue that had been made, the applicants had leave to re-approach the Court to enable the Court to consider whether any order should be made under s 14(2)(g) and (h) of the Trees (Disputes Between Neighbours) Act 2006 to permit the applicants to carry out the works and recover the cost of the carrying out of the works from the respondent.

Orders

Orders of the court

In Matter No: 21041 of 2010, the application is dismissed.

In Matter No: 21040 of 2010:

1.With respect to the group of four Cypress trees located on the southern boundary of the respondent's property at the approximate mid point of that boundary, the respondent is ordered to prune, within thirty days, those trees to a height not exceeding 4.5 m above ground level at the base of the trunks of those trees.

2.The respondent is to maintain those four trees, pruned so that at no time in the future do they exceed a height of 4.7 m above the ground level at the base of the trunks of those trees.

3.With respect to the trees across the eastern boundary, the respondent is to prune those to a height of 5 m above the existing natural ground level for each of those trees at the point where the trunk enters the ground.

4.The pruning in (3) is to be maintained so that at no time in the future do any of those trees exceed a height of 5.2 m above the height required for the initial pruning.

5.All pruning of the trees on the southern and eastern boundaries of the property is be carried out within thirty days of these orders.

6.The pruning in (1) to (4) is to be conducted by an arborist with AQF level 3 qualifications and appropriate WorkCover insurances.

7.At the time the pruning in (3) is to be carried out, the respondent shall arrange for a wildlife carer of an organisation such as WIRES or similar be present at the time of the pruning in order to be able to undertake a capture, trap and release for the possum that appears to be resident in the southern end of those trees.

8.To the extent that it may be necessary for the person carrying out of the pruning of the trees in (3) and (4) to access the air space of the applicants' property for the purposes of effecting the pruning to the trees on the eastern boundary, such access is required to be given by the applicants on reasonable notice, at a reasonable hour of the day, and subject to the applicants having the right to supervise that access if it is required.

9.If for some reason, it is necessary for there to be physical access (other than access to the air space) to the applicants' property for the purposes of giving effect to the pruning along the eastern boundary, physical access is to be made available on reasonable notice, at a reasonable hour of the day, and with the applicants having the opportunity to supervise that access if it were to be required.

10.The pruning and the wildlife rescue costs are to be met by the respondent.

11.The ongoing pruning costs are to be met by the respondent; and

12.If, for any reason, the respondent fails to carry out any of the orders for pruning or wildlife rescue that have been made, the applicants have leave to re-approach the Court to enable the Court to consider whether any order should be made pursuant to s 14(2)(g) and (h) of the Trees (Disputes Between Neighbours) Act 2006 to permit the applicants to carry out the works and recover the cost of the carrying out of the works from the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146
Hearing dates:	9 May 2011
Decision date:	10 May 2011
Jurisdiction:	Class 2
Before:	Moore SC; Hewett AC
Decision:	In Matter No: 21041 of 2010, the application is dismissed. In Matter No: 21040 of 2010: 1.With respect to the group of four Cypress trees located on the southern boundary of the respondent's property at the approximate mid point of that boundary, the respondent is ordered to prune, within thirty days, those trees to a height not exceeding 4.5 m above ground level at the base of the trunks of those trees. 2.The respondent is to maintain those four trees, pruned so that at no time in the future do they exceed a height of 4.7 m above the ground level at the base of the trunks of those trees. 3.With respect to the trees across the eastern boundary, the respondent is to prune those to a height of 5 m above the existing natural ground level for each of those trees at the point where the trunk enters the ground. 4.The pruning in (3) is to be maintained so that at no time in the future do any of those trees exceed a height of 5.2 m above the height required for the initial pruning. 5.All pruning of the trees on the southern and eastern boundaries of the property is be carried out within thirty days of these orders. 6.The pruning in (1) to (4) is to be conducted by an arborist with AQF level 3 qualifications and appropriate WorkCover insurances. 7.At the time the pruning in (3) is to be carried out, the respondent shall arrange for a wildlife carer of an organisation such as WIRES or similar be present at the time of the pruning in order to be able to undertake a capture, trap and release for the possum that appears to be resident in the southern end of those trees. 8.To the extent that it may be necessary for the person carrying out of the pruning of the trees in (3) and (4) to access the air space of the applicants' property for the purposes of effecting the pruning to the trees on the eastern boundary, such access is required to be given by the applicants on reasonable notice, at a reasonable hour of the day, and subject to the applicants having the right to supervise that access if it is required. 9.If for some reason, it is necessary for there to be physical access (other than access to the air space) to the applicants' property for the purposes of giving effect to the pruning along the eastern boundary, physical access is to be made available on reasonable notice, at a reasonable hour of the day, and with the applicants having the opportunity to supervise that access if it were to be required. 10.The pruning and the wildlife rescue costs are to be met by the respondent.