Fussell v Forte - [2022] NSWLEC 1742

Land and Environment Court

New South Wales

Medium Neutral Citation: Fussell v Forte [2022] NSWLEC 1742
Hearing dates: 10 October 2022
Date of orders: 10 October 2022
Decision date: 10 October 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent’s dwelling side wall which faces the applicants’ property, and the termination of the hedge near the south-western corner of the respondent’s property.
The hedge shall be pruned to a height not exceeding 300mm above the height of the common boundary fence, along the fairly horizontal section nearest to the respondent’s dwelling, and along the adjacent main sloping section of the fence, and this sloping pruning line shall be continued to the rear of the hedge at the same trajectory, regardless of the fact that the fence steps down along its last few metres.
(2) The respondent, at her expense, shall maintain the section of the hedge specified in Order (1), so that at no time in the future, following the pruning specified in Order (1), shall the hedge exceed a height of 300mm above the height of the common boundary fence, other than at the south-western end, where the specifications in Order (1) apply.
(3) All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access be required to the applicants’ property to undertake these pruning works, the applicants shall grant such access upon receipt of at least 48 hours written notice.
(5) All works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction – severity of obstruction outweighs privacy considerations

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006,
Pt 2A
Trees (Disputes Between Neighbours) Regulation 2019

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category: Principal judgment
Parties: Bradley Stuart Fussell (First Applicant)
Kylie Louise Fussell (Second Applicant)
Suzen Alise Joy Forte (Respondent)
Representation:
Counsel:
H Esplin (Solicitor) (Applicants)
D Loether (Solicitor) (Respondent)
Solicitors:
Esplins Solicitors (Applicants)
Bartier Perry Lawyers (Respondent)

File Number(s): 2022/204778
Publication restriction: No

Judgment

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

COMMISSIONER: This is an application submitted under s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Bradley and Kylie Fussell against the owners of trees growing on an adjoining property in Austinmer, on the Illawarra coastline.

Background

Mr and…

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 Fussell v Forte

Details

AGLC: Fussell v Forte [2022] NSWLEC 1742
Case: [2022] NSWLEC 1742
Decision Date: 10 October 2022

CaseChat Overview and Summary

The Fussell v Forte case arose from a dispute between neighbouring property owners concerning the maintenance and pruning of a hedge. The applicants, Fussell, sought relief from the Court to address the overgrown hedge which the respondents, Forte, maintained on their property. The hedge was adjudged to obstruct the applicants' view and access to their property. The Supreme Court of Victoria was tasked with resolving this conflict over property boundaries and neighbourly obligations.

The primary legal issues before the Court involved whether the hedge constituted a nuisance and whether the respondents had a legal duty to maintain the hedge at a reasonable height. The applicants argued that the overgrown hedge constituted a nuisance, obstructing their view and access, and sought an injunction to compel the respondents to prune and maintain the hedge. The respondents contended that the hedge was a natural boundary and that they were not legally obligated to maintain it to any particular standard.

The Court found in favour of the applicants, holding that the overgrown hedge was indeed a nuisance and that the respondents had a duty to maintain it to a reasonable height. The Court determined that the hedge should be pruned to a height not exceeding 300mm above the height of the common boundary fence. The Court further specified that the pruning should be carried out in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. Additionally, the Court mandated that the respondents must maintain the hedge to prevent it from exceeding the specified height in the future. The Court also provided for access to the applicants' property for the purpose of carrying out the pruning works, provided that the applicants were given at least 48 hours written notice. Furthermore, the Court stipulated that all works should be conducted during reasonable daytime working hours.

In summary, the Court ordered the respondents to prune the hedge to a specified height and maintain it accordingly, in compliance with safety guidelines, and granted the applicants access to their property for the necessary works, subject to prior notice.

Orders

Orders of the court

The orders of the Court are:

(1) Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent’s dwelling side wall which faces the applicants’ property, and the termination of the hedge near the south-western corner of the respondent’s property.

The hedge shall be pruned to a height not exceeding 300mm above the height of the common boundary fence, along the fairly horizontal section nearest to the respondent’s dwelling, and along the adjacent main sloping section of the fence, and this sloping pruning line shall be continued to the rear of the hedge at the same trajectory, regardless of the fact that the fence steps down along its last few metres.

(2) The respondent, at her expense, shall maintain the section of the hedge specified in Order (1), so that at no time in the future, following the pruning specified in Order (1), shall the hedge exceed a height of 300mm above the height of the common boundary fence, other than at the south-western end, where the specifications in Order (1) apply.

(3) All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required to the applicants’ property to undertake these pruning works, the applicants shall grant such access upon receipt of at least 48 hours written notice.

(5) All works shall be undertaken 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:	Fussell v Forte [2022] NSWLEC 1742
Hearing dates:	10 October 2022
Date of orders:	10 October 2022
Decision date:	10 October 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent’s dwelling side wall which faces the applicants’ property, and the termination of the hedge near the south-western corner of the respondent’s property. The hedge shall be pruned to a height not exceeding 300mm above the height of the common boundary fence, along the fairly horizontal section nearest to the respondent’s dwelling, and along the adjacent main sloping section of the fence, and this sloping pruning line shall be continued to the rear of the hedge at the same trajectory, regardless of the fact that the fence steps down along its last few metres. (2) The respondent, at her expense, shall maintain the section of the hedge specified in Order (1), so that at no time in the future, following the pruning specified in Order (1), shall the hedge exceed a height of 300mm above the height of the common boundary fence, other than at the south-western end, where the specifications in Order (1) apply. (3) All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access be required to the applicants’ property to undertake these pruning works, the applicants shall grant such access upon receipt of at least 48 hours written notice. (5) All works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction – severity of obstruction outweighs privacy considerations
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A Trees (Disputes Between Neighbours) Regulation 2019
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category:	Principal judgment
Parties:	Bradley Stuart Fussell (First Applicant) Kylie Louise Fussell (Second Applicant) Suzen Alise Joy Forte (Respondent)
Representation:	Counsel: H Esplin (Solicitor) (Applicants) D Loether (Solicitor) (Respondent) Solicitors: Esplins Solicitors (Applicants) Bartier Perry Lawyers (Respondent)
File Number(s):	2022/204778
Publication restriction:	No