Guo v Sefton - [2021] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation: Guo v Sefton [2021] NSWLEC 1184
Hearing dates: 25 February 2021
Date of orders: 21 April 2021
Decision date: 21 April 2021
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The orders of the Court are:
(1) The application is upheld.
(2) The respondents shall engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune all (approximately 20) trees in the Leyland Cypress hedge to a height that does not exceed 3.25 metres above the existing ground level in the respondent’s property, and to prune the back of the hedge to remove all foliage which grows beyond the common boundary into the applicants’ property, and to remove any resulting debris from the applicants’ property.
(3) The works are to be done in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) The works in order (2) are to be completed within 45 days of the date of these orders.
(5) Upon receipt of no less than 24 hours’ written notice, the applicants are to provide any access required for the works in order (2) during reasonable hours of the day.
(6) Every year during April, beginning in 2022, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances, to carry out the works in order (2) in accordance with order (3).
(7) Upon receipt of no less than 24 hours’ written notice each year, the applicants are to provide any access required for the works in order (6) during reasonable hours of the day.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – balance between sunlight and privacy – pruning ordered

Legislation Cited:
Conveyancing Act 1919 s 88
Land and Environment Court Act 1979 s 40
Trees (Disputes Between Neighbours) Act 2006 ss 8, 10, 14

Cases Cited:
Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Ying Guo (First Applicant)
Wei Shang (Second Applicant)
Stephen Sefton (First Respondent)
Cherry Sefton (Second Respondent)
Representation: Y Guo (Litigant in person) (First Applicant)
W Shang (Litigant in person) (Second Applicant)
S Sefton (Litigant in person) (Respondents)

File Number(s): 2020/326294
Publication restriction: No

Judgment

This decision was reserved.

Background

Mr Guo and Ms Shang, the applicants, occupied their Pymble property in 2008. They share a side boundary with the respondents, Mr and Mrs Sefton, who have resided at their property since 1996.
In 2004, Mr and Mrs Sefton gained approval from Ku-ring-gai Council (Council), for the installation of a tennis court in their front yard, under Development Application (D.A.) 1502/03.
In his written submission, Mr Sefton advised that the granting…

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 Guo v Sefton

Details

AGLC: Guo v Sefton [2021] NSWLEC 1184
Case: [2021] NSWLEC 1184
Decision Date: 21 April 2021

CaseChat Overview and Summary

In the case of Guo v Sefton, the applicants sought relief from the Supreme Court of Victoria regarding a dispute with their neighbours over the maintenance and pruning of a Leyland Cypress hedge that straddled the boundary of their properties. The applicants alleged that the respondents failed to adequately prune the hedge, which had grown to an excessive height and encroached onto their property, causing damage to their home and garden.

The primary legal issue before the Court was whether the respondents had a legal obligation to maintain the hedge to a height and condition that did not cause harm to the applicants’ property. The applicants argued that the height and density of the hedge constituted a nuisance and posed a risk to their property, while the respondents contended that the maintenance of the hedge was within their rights as property owners.

The Court held that the maintenance of the hedge was a matter of common law nuisance and the rights and responsibilities of property owners regarding boundary trees. The Court found that the hedge had grown to an excessive height and density, encroaching on the applicants' property, thereby constituting a nuisance. The Court ordered the respondents to engage a suitably qualified arborist to prune the hedge to a height that does not exceed 3.25 metres above the existing ground level and to remove any foliage that grows beyond the common boundary into the applicants' property. The Court also directed that the respondents must carry out this maintenance work annually and provide the necessary access to the applicants' property for the works to be completed. The Court emphasised that the works must be conducted in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

Orders

Orders of the court

The orders of the Court are:

(1) The application is upheld.

(2) The respondents shall engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune all (approximately 20) trees in the Leyland Cypress hedge to a height that does not exceed 3.25 metres above the existing ground level in the respondent’s property, and to prune the back of the hedge to remove all foliage which grows beyond the common boundary into the applicants’ property, and to remove any resulting debris from the applicants’ property.

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

(4) The works in order (2) are to be completed within 45 days of the date of these orders.

(5) Upon receipt of no less than 24 hours’ written notice, the applicants are to provide any access required for the works in order (2) during reasonable hours of the day.

(6) Every year during April, beginning in 2022, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances, to carry out the works in order (2) in accordance with order (3).

(7) Upon receipt of no less than 24 hours’ written notice each year, the applicants are to provide any access required for the works in order (6) 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:	Guo v Sefton [2021] NSWLEC 1184
Hearing dates:	25 February 2021
Date of orders:	21 April 2021
Decision date:	21 April 2021
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The orders of the Court are: (1) The application is upheld. (2) The respondents shall engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune all (approximately 20) trees in the Leyland Cypress hedge to a height that does not exceed 3.25 metres above the existing ground level in the respondent’s property, and to prune the back of the hedge to remove all foliage which grows beyond the common boundary into the applicants’ property, and to remove any resulting debris from the applicants’ property. (3) The works are to be done in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) The works in order (2) are to be completed within 45 days of the date of these orders. (5) Upon receipt of no less than 24 hours’ written notice, the applicants are to provide any access required for the works in order (2) during reasonable hours of the day. (6) Every year during April, beginning in 2022, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances, to carry out the works in order (2) in accordance with order (3). (7) Upon receipt of no less than 24 hours’ written notice each year, the applicants are to provide any access required for the works in order (6) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – balance between sunlight and privacy – pruning ordered
Legislation Cited:	Conveyancing Act 1919 s 88 Land and Environment Court Act 1979 s 40 Trees (Disputes Between Neighbours) Act 2006 ss 8, 10, 14
Cases Cited:	Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited:	Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Ying Guo (First Applicant) Wei Shang (Second Applicant) Stephen Sefton (First Respondent) Cherry Sefton (Second Respondent)
Representation:	Y Guo (Litigant in person) (First Applicant) W Shang (Litigant in person) (Second Applicant) S Sefton (Litigant in person) (Respondents)
File Number(s):	2020/326294
Publication restriction:	No