Donkersley v Antolovich - [2019] NSWLEC 1445

Land and Environment Court

New South Wales

Medium Neutral Citation: Donkersley v Antolovich [2019] NSWLEC 1445
Hearing dates: 14 August 2019
Date of orders: 12 September 2019
Decision date: 12 September 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The orders of the Court are:
(1)   The application is granted.
(2)   During October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that:
(a)   Trees T2–T12 (trees north of the banksia T13) are no taller than 2.5 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant;
(b)   Trees T14–T17 (trees south of the banksia T13) are no taller than 4.0 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant.
(3)   Each year the respondents are to give the applicant one week’s notice of the pruning works.
(4)   Each year the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of view – whether the trees are severely obstructing a view – privacy – whether the trees’ height is a condition of a Development Consent
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Haindl v Daisch [2011] NSWLEC 1145
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category: Principal judgment
Parties: Robert Leslie Donkersley (Applicant)
Alexander Leon Antolovich (First Respondent)
Natalie Antolovich (Second Respondent)
Representation:
Counsel:
R Donkersley (Litigant in person) (Applicant)
J Doyle (Respondents)
Solicitors:
Connor and Co Lawyers (Respondents)

File Number(s): 2019/73737
Publication restriction: No

Judgment

Background

Sailors Bay separates Northbridge and Castlecrag in Sydney’s inner north, with Northbridge Marina nestled in its most western arm. The landscape rising up on all sides of the water here is dominated by native trees. The amenity for any dwelling here is enhanced by the bushland character of the landscape and the water views.
Robert Donkersley (‘the applicant’) and Lesia Donkersley have lived in Northbridge on the southern side of the bay since 1991. Their north-facing dwelling has water views. On the neighbouring property to their east, Alexander and Natalie Antolovich (‘the respondents’) have planted hedges of lilli pilli and cypress trees along their boundaries.
For several years, the Donkersleys have tried to negotiate with their neighbours to have the hedges pruned to restore views they have lost due to these trees. Mr Donkersley applied to the Court in March of this year, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the hedge of lilli pillies to be pruned and the hedge of cypress trees to be removed.
Mr Donkersley also applied for orders for a large Angophora to be pruned, as large dead branches…

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 Donkersley v Antolovich

Details

AGLC: Donkersley v Antolovich [2019] NSWLEC 1445
Case: [2019] NSWLEC 1445
Decision Date: 12 September 2019

CaseChat Overview and Summary

Donkersley v Antolovich involved a dispute between the applicant, Donkersley, and the respondents, Antolovich, over the maintenance of a hedge along their shared boundary. The applicant sought an order for the respondents to prune the lilli pillies in the hedge so that the trees would not exceed certain heights and would not overhang the common boundary, as well as for notice of the pruning works and access to the property for the purposes of the works. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether the applicant was entitled to an order that would require the respondents to prune the lilli pillies in the hedge in accordance with the specifications set out in the application, and whether such an order was in the interests of justice. The court also had to consider whether the applicant was entitled to an order that would require the respondents to give notice of the pruning works and to allow access to the property for the purposes of the works. The court had to balance the applicant’s right to enjoy their property without interference from the respondents’ property with the respondents’ right to maintain their property in a reasonable manner.

The court found that the applicant was entitled to an order that would require the respondents to prune the lilli pillies in the hedge in accordance with the specifications set out in the application, as the height and overhang of the trees constituted a nuisance that interfered with the applicant’s enjoyment of their property. The court also found that such an order was in the interests of justice, as it would remedy the nuisance and prevent it from recurring in the future. The court further found that the applicant was entitled to an order that would require the respondents to give notice of the pruning works and to allow access to the property for the purposes of the works, as this was necessary to enable the works to be carried out in a reasonable manner.

The orders of the Court were that the application was granted and that during October each year, beginning October 2019, the respondents were to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that certain trees were no taller than specified heights and no parts of the trees overhang the common boundary shared with the applicant. Each year the respondents were to give the applicant one week’s notice of the pruning works and each year the applicant was to allow any access necessary for these works to be completed during reasonable hours of the day.

Orders

Orders of the court

The orders of the Court are:

(1) The application is granted.

(2) During October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that:

(a) Trees T2–T12 (trees north of the banksia T13) are no taller than 2.5 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant;

(b) Trees T14–T17 (trees south of the banksia T13) are no taller than 4.0 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant.

(3) Each year the respondents are to give the applicant one week’s notice of the pruning works.

(4) Each year the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.

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:	Donkersley v Antolovich [2019] NSWLEC 1445
Hearing dates:	14 August 2019
Date of orders:	12 September 2019
Decision date:	12 September 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The orders of the Court are: (1) The application is granted. (2) During October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that: (a) Trees T2–T12 (trees north of the banksia T13) are no taller than 2.5 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant; (b) Trees T14–T17 (trees south of the banksia T13) are no taller than 4.0 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant. (3) Each year the respondents are to give the applicant one week’s notice of the pruning works. (4) Each year the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of view – whether the trees are severely obstructing a view – privacy – whether the trees’ height is a condition of a Development Consent
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Robert Leslie Donkersley (Applicant) Alexander Leon Antolovich (First Respondent) Natalie Antolovich (Second Respondent)
Representation:	Counsel: R Donkersley (Litigant in person) (Applicant) J Doyle (Respondents) Solicitors: Connor and Co Lawyers (Respondents)
File Number(s):	2019/73737
Publication restriction:	No