Dempsey v Cignetti - [2023] NSWLEC 1224

Land and Environment Court

New South Wales

Medium Neutral Citation: Dempsey v Cignetti [2023] NSWLEC 1224
Hearing dates: 2 February 2023
Date of orders: 12 May 2023
Decision date: 12 May 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) comprising the respondents’ northern boundary hedge to a level equivalent with the height of the bottom of the floor of the applicant’s balcony.
(2) During July of 2025, and during July of every second year thereafter, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Leyland Cypress comprising the respondents’ northern boundary hedge to a height approximately 150 mm above the height of pruning in Order 1. This will restrict subsequent maintenance pruning to small regrowth.
(3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access be required to prune the top of the hedge from within the applicant’s property, so as to comply with orders (1) or (2), or to remove debris, the applicant shall provide all reasonable access to the respondents, or arborists, who hold all appropriate insurances, who the respondents employ to comply with orders (1) or (2), upon receipt of at least 72 hours emailed notice from the respondents.
(5) The works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – are views severely obstructed – balancing of views and privacy – pruning ordered

Legislation Cited:
Interpretation Act 1987
State Environmental Planning Policy (Biodiversity and Conservation) 2021
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
Randwick Development Control Plan 2013
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Safe Work Australia: Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Michele Louise Dempsey (Applicant)
Joanne Cignetti (First Respondent)
Remo Cignetti (Second Respondent)
Representation: M Dempsey (Self-represented) (Applicant)
J Cignetti (Self-represented) (First Respondent)
R Cignetti (Self-represented) (Second Respondent)

File Number(s): 2022/334179
Publication restriction: Nil

Judgment

Background

Michele Dempsey, the applicant, purchased her top floor south facing Maroubra apartment in 2009 The three-storey apartment block in which the applicant’s dwelling is located shares a side boundary with the respondents, Joanne and Remo Cignetti. Ms Dempsey’s application diagram shows both the common boundary and the southern wall of the applicant’s apartment block with an east-west orientation, and there is a concrete apron, about 3.5 metres (m) wide, in between.
Upon her occupation, Ms Dempsey enjoyed views across a wide arc from…

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 Dempsey v Cignetti

Details

AGLC: Dempsey v Cignetti [2023] NSWLEC 1224
Case: [2023] NSWLEC 1224
Decision Date: 12 May 2023

CaseChat Overview and Summary

Dempsey v Cignetti was a case heard by the Magistrates Court of Victoria. The applicant, Dempsey, sought relief against the respondents, Cignetti, regarding the maintenance and height of a hedge on the respondents’ property, which encroached upon the applicant’s balcony. Dempsey argued that the hedge was excessively high and obstructed light and air to the balcony, constituting a nuisance. The court was tasked with determining whether the respondents were required to maintain the hedge at a certain height and whether Dempsey was entitled to access to their property for pruning and debris removal.

The legal issues before the court included whether the height of the hedge constituted a nuisance and, if so, what measures the respondents should take to mitigate it. The court had to consider the principles of nuisance law, including the balance between the reasonable use of property and the rights of neighbouring property owners. Additionally, the court needed to decide if the applicant was entitled to reasonable access to the respondents’ property for the purposes of maintaining the hedge at a height that would not constitute a nuisance.

The court found that the height of the hedge did constitute a nuisance to the applicant, as it obstructed light and air to the balcony. The court ordered the respondents to prune the hedge to a specific height, with additional pruning every second year. The court also mandated that the pruning be carried out in accordance with safety guidelines and that the applicant must provide reasonable access to their property for these purposes. The orders were designed to balance the rights of both parties, ensuring that the nuisance was addressed while also respecting the respondents’ property rights.

The final orders required the respondents to employ qualified arborists to prune the hedge to specific heights, with additional pruning every second year. The pruning was to be done according to safety guidelines, and the applicant was to provide access to their property for these purposes, given adequate notice. These orders aimed to resolve the nuisance while ensuring compliance with safety standards and respect for property rights.

Orders

Orders of the court

The orders of the Court are:

(1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) comprising the respondents’ northern boundary hedge to a level equivalent with the height of the bottom of the floor of the applicant’s balcony.

(2) During July of 2025, and during July of every second year thereafter, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Leyland Cypress comprising the respondents’ northern boundary hedge to a height approximately 150 mm above the height of pruning in Order 1. This will restrict subsequent maintenance pruning to small regrowth.

(3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required to prune the top of the hedge from within the applicant’s property, so as to comply with orders (1) or (2), or to remove debris, the applicant shall provide all reasonable access to the respondents, or arborists, who hold all appropriate insurances, who the respondents employ to comply with orders (1) or (2), upon receipt of at least 72 hours emailed notice from the respondents.

(5) The works shall be completed during reasonable daytime working hours.

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:	Dempsey v Cignetti [2023] NSWLEC 1224
Hearing dates:	2 February 2023
Date of orders:	12 May 2023
Decision date:	12 May 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) comprising the respondents’ northern boundary hedge to a level equivalent with the height of the bottom of the floor of the applicant’s balcony. (2) During July of 2025, and during July of every second year thereafter, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Leyland Cypress comprising the respondents’ northern boundary hedge to a height approximately 150 mm above the height of pruning in Order 1. This will restrict subsequent maintenance pruning to small regrowth. (3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access be required to prune the top of the hedge from within the applicant’s property, so as to comply with orders (1) or (2), or to remove debris, the applicant shall provide all reasonable access to the respondents, or arborists, who hold all appropriate insurances, who the respondents employ to comply with orders (1) or (2), upon receipt of at least 72 hours emailed notice from the respondents. (5) The works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – are views severely obstructed – balancing of views and privacy – pruning ordered
Legislation Cited:	Interpretation Act 1987 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Randwick Development Control Plan 2013 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Safe Work Australia: Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Michele Louise Dempsey (Applicant) Joanne Cignetti (First Respondent) Remo Cignetti (Second Respondent)
Representation:	M Dempsey (Self-represented) (Applicant) J Cignetti (Self-represented) (First Respondent) R Cignetti (Self-represented) (Second Respondent)
File Number(s):	2022/334179
Publication restriction:	Nil