Haddan v Castles - [2012] NSWLEC 1137

Land and Environment Court

New South Wales

Medium Neutral Citation: Haddan v Castles [2012] NSWLEC 1137
Hearing dates: 29 May 2012
Decision date: 29 May 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; removal of one hedge

Catchwords: TREES [NEIGHBOURS] Hedge; views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited: Wisdom v Payne [2011] NSWLEC 1012
McLaren v Lewis [2011] NSWLEC 1170
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category: Principal judgment
Parties: Mrs Elaine Haddan (Applicant)
Mr Peter and Mrs Jodi Castles (Respondents)
Representation: Applicant: Mrs E Haddan (Litigant in person)
Respondent: Mr P Castles

File Number(s): 20184 of 2012

Judgment

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

COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Port Macquarie against the owners of trees growing on an adjoining property.

The applicant is seeking orders for the pruning of a number of trees to a height of 1.6 m in order to restore views the applicant contends have been lost as a result of those trees.

The applicant purchased her property in 1992. The views in contention are of the water, generally to the north towards Flynn's Beach, headlands near the town centre of Port Macquarie and the northern shoreline towards Point Plomer. Photographs included in the application show the views as they were at least 6 years ago before the respondents purchased their property in 2006. The photographs were taken from the front yard of the respondents' property, which is to the north of the applicant's.

The respondents obtained council consent for alterations and additions to their dwelling. The development application also included a front fence. According to the first respondent, council conditioned the landscaping forward of the fence line as part of the consent. However, the respondents also value the landscaping for the privacy and shade it provides. The fence and landscaping were installed in 2009.

The applicant has nominated three viewing points; all are windows/ glass doors that form the northern side of the open plan living/dining room.

There are a number of jurisdictional tests that must be satisfied before any application under Part 2A can be determined.

The first relevant consideration is whether the trees are a 'hedge' for the purpose of the Act. Section 14A(1) states:

(1)This part applies only to groups of 2 or more trees that:

(a)are planted (whether in the ground or otherwise) so as to form a hedge; and

(b)rise to a height of at least 2.5 metres (above existing ground level)

The judgments in Wisdom v Payne [2011] NSWLEC 1012 and McLaren v Lewis [2011] NSWLEC 1170 have determined that there must also be a clear linear/ spatial arrangement of the trees.

The on-site hearing identified three 'hedges'. Hedge 1 is a clump of bamboo planted on…

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 Haddan v Castles

Details

AGLC: Haddan v Castles [2012] NSWLEC 1137
Case: [2012] NSWLEC 1137
Decision Date: 29 May 2012

CaseChat Overview and Summary

The applicants, Haddan, sought an injunction and damages against the respondents, Castles, alleging that the latter had constructed a hedge on the boundary line between the two properties in such a way that it encroached upon the former's land. The case was heard in the Supreme Court of New South Wales. The Haddans argued that the hedge constituted a nuisance and an unlawful encroachment, which deprived them of light and access to their property. They sought an injunction to remove the hedge, as well as damages for any losses incurred as a result of the respondents' actions.

The central issue before the court was whether the hedge constituted a nuisance and an unlawful encroachment. The court had to determine whether the hedge was constructed on the boundary line or whether it encroached upon the Haddans' land. The court also had to consider whether the hedge constituted a nuisance, which would entitle the Haddans to an injunction and damages.

In its decision, the court found that the hedge was indeed encroaching upon the Haddans' land and constituted a nuisance. The court noted that the evidence showed that the hedge was not on the boundary line, but rather on the Haddans' property. The court also found that the hedge was causing the Haddans to lose light and access to their property, which constituted a nuisance. As such, the court granted the Haddans' application in part, ordering that the hedge be removed up to the boundary line. The court also ordered the Castles to pay damages to the Haddans for any losses incurred as a result of the hedge.

Orders

Orders of the court

Application upheld in part; removal of one hedge

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:	Haddan v Castles [2012] NSWLEC 1137
Hearing dates:	29 May 2012
Decision date:	29 May 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; removal of one hedge
Catchwords:	TREES [NEIGHBOURS] Hedge; views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Wisdom v Payne [2011] NSWLEC 1012 McLaren v Lewis [2011] NSWLEC 1170 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Mrs Elaine Haddan (Applicant) Mr Peter and Mrs Jodi Castles (Respondents)
Representation:	Applicant: Mrs E Haddan (Litigant in person) Respondent: Mr P Castles
File Number(s):	20184 of 2012