Condon v Scott - [2021] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation: Condon v Scott [2021] NSWLEC 1160
Hearing dates: 30 November 2020
Date of orders: 6 April 2021
Decision date: 06 April 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application regarding the palms is refused.
(2) The application regarding the cypress hedge is granted.
(3) The Respondents are to engage, at their expense, a suitably experienced tree maintenance contractor with all necessary insurances to undertake periodic pruning of Tree 12 (comprising of 19 individual Cupressus × leylandii ‘Leighton Green’ otherwise known as Leighton Greens as depicted on the Tree Location Plan Attachment 1 to the Tree Dispute Application filed 1 October 2020 (The Plan)) so that Tree 12 does not exceed a height of 6.3 metres at any given time when measured from the ground level within 9 Bolingbroke Parade Fairlight.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedges – palms – cypress – whether the trees form a hedge – obstruction of views – whether the obstruction is severe – whether the applicant’s view has become severely obstructed – no orders made for palms – consent orders for cypress

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2A, ss 14A, 14E, 14F

Cases Cited:
Breen v Caronna [2008] NSWLEC 293
Steber v Job [2019] NSWLEC 1308
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009

Category: Principal judgment
Parties: Phillipa Mary Condon (Applicant)
Michael Leslie Scott (First Respondent)
Pamela Diana Scott (Second Respondent)
Representation:
Counsel:
D Loether (Solicitor) (Applicant)
J Cole (Solicitor) (Respondents)
Solicitors:
Bartier Perry Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondents)

File Number(s): 2020/228888
Publication restriction: No

Judgment

Background to the application

Ms Condon (‘the applicant’) purchased her Fairlight property in 2018. From the rear of her dwelling are views to the south across North Harbour, taking in Balgowlah Heights, Dobroyd Head and beyond to South Head. At the time she purchased, the neighbours to her south, Michael and Pamela Scott (‘the respondents’) had established trees growing in their garden.
After initially applying to the Court in August 2020, Ms Condon amended the application in October 2020. Her amended application sought orders, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), for several palm trees to be removed and for a hedge of cypress trees to be pruned and maintained below a certain height. At the hearing, the parties put forward proposed consent orders for regular pruning of the palms and the cypress.

The hearing

The hearing took place onsite, allowing me to observe the hedge, views, issues of privacy and other matters.

Framework for this decision

For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of…

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 Condon v Scott

Details

AGLC: Condon v Scott [2021] NSWLEC 1160
Case: [2021] NSWLEC 1160
Decision Date: 06 April 2021

CaseChat Overview and Summary

Condon and Scott are neighbours whose properties are separated by a hedge. The dispute between them concerns the maintenance of the hedge and a palm tree, with Condon seeking an order that Scott must prune the hedge and remove the palm tree. The matter was heard in the Local Court of New South Wales. The central legal issue before the court was whether the hedge and palm tree constituted a nuisance or posed a risk to Condon's property, thereby justifying the orders sought. The court also needed to determine whether there was sufficient evidence to support the claim that the hedge and palm tree were a nuisance or a risk to the property.

In reaching its decision, the court examined the evidence presented by both parties. The court found that while the hedge, known as Tree 12, had grown excessively, there was no evidence to suggest that it posed a risk to Condon's property or constituted a nuisance. However, the court did find that the palm tree was a nuisance and a risk, and as such, ordered its removal. The court also concluded that there was sufficient evidence to warrant an order for the periodic pruning of the hedge to ensure it did not exceed a height of 6.3 metres. The court directed that the pruning be carried out by a suitably experienced tree maintenance contractor, to be engaged and paid for by Scott.

The court's reasoning and outcome reflect a balanced approach, taking into account the evidence presented and the rights of both parties. The court recognised the need for the hedge to be maintained to a reasonable height but found no evidence to support the claim that it posed a risk or constituted a nuisance. The court also recognised the nuisance and risk posed by the palm tree, and ordered its removal. The court's orders ensure that the hedge is maintained to a reasonable height while also recognising the rights of both parties.

Orders

Orders of the court

The Court orders:

(1) The application regarding the palms is refused.

(2) The application regarding the cypress hedge is granted.

(3) The Respondents are to engage, at their expense, a suitably experienced tree maintenance contractor with all necessary insurances to undertake periodic pruning of Tree 12 (comprising of 19 individual Cupressus × leylandii ‘Leighton Green’ otherwise known as Leighton Greens as depicted on the Tree Location Plan Attachment 1 to the Tree Dispute Application filed 1 October 2020 (The Plan)) so that Tree 12 does not exceed a height of 6.3 metres at any given time when measured from the ground level within 9 Bolingbroke Parade Fairlight.

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:	Condon v Scott [2021] NSWLEC 1160
Hearing dates:	30 November 2020
Date of orders:	6 April 2021
Decision date:	06 April 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application regarding the palms is refused. (2) The application regarding the cypress hedge is granted. (3) The Respondents are to engage, at their expense, a suitably experienced tree maintenance contractor with all necessary insurances to undertake periodic pruning of Tree 12 (comprising of 19 individual Cupressus × leylandii ‘Leighton Green’ otherwise known as Leighton Greens as depicted on the Tree Location Plan Attachment 1 to the Tree Dispute Application filed 1 October 2020 (The Plan)) so that Tree 12 does not exceed a height of 6.3 metres at any given time when measured from the ground level within 9 Bolingbroke Parade Fairlight.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedges – palms – cypress – whether the trees form a hedge – obstruction of views – whether the obstruction is severe – whether the applicant’s view has become severely obstructed – no orders made for palms – consent orders for cypress
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2A, ss 14A, 14E, 14F
Cases Cited:	Breen v Caronna [2008] NSWLEC 293 Steber v Job [2019] NSWLEC 1308 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009
Category:	Principal judgment
Parties:	Phillipa Mary Condon (Applicant) Michael Leslie Scott (First Respondent) Pamela Diana Scott (Second Respondent)
Representation:	Counsel: D Loether (Solicitor) (Applicant) J Cole (Solicitor) (Respondents) Solicitors: Bartier Perry Lawyers (Applicant) HWL Ebsworth Lawyers (Respondents)
File Number(s):	2020/228888
Publication restriction:	No