The application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 concerning three Weeping Fig trees and a Cheese Tree located on the property to the west of the applicants' property is dismissed.
Catchwords:
TREES (NEIGHBOURS) - prerequisites to exercise of jurisdiction pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 - permitting an incoming purchaser of a property upon which the trees are located to be joined as a party - what constitutes a view - can there be multiple views from a single viewing point - to what extent does the impact on portion of a view constitute an impact on the whole view - power to make ongoing orders if only a single tree were to remain from a hedge - balancing the interests of the tree owner to privacy, shade and verdant outlook with the interests of the applicants - significance of the nature of locations within a dwelling from which view is experienced - bedroom balcony, bedroom corridor and landing respectively - role of council policy in not permitting trees to be removed for view enhancement - nature of view created if trees removed - impact on wildlife habitat
W & M Haindl (Applicants) M Daisch (First respondent) C Collins (Second respondent)
Representation:
Counsel: Mr C Ireland (Applicants) Mr A Hill (First respondent) Mr J Collins - Solicitor (Second respondent) Solicitors: Page Partners (Applicant) Stuart & Mills (First respondent) Clayton Utz (Second respondent)
File Number(s):
20891 of 2010
Judgment
The application
This is an application made pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act2006 (the Trees Act). Part 2A was inserted in the Trees Act to take effect from August 2010, relevantly, to provide an opportunity for persons who considered that the views from their property were severely obstructed by trees on an adjoining property to seek a remedy for that severe obstruction.
The application is based on what is claimed to be the severe obstruction of views from a number of locations on the applicants' property. The locations from which these views are observed and the nature of each view and the impact of trees thereupon are discussed in detail later.
Relevant vegetation
In these proceedings, the three trees involved are Weeping Fig trees ( Ficus benjamina ) (the fig trees) located on the eastern 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.
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Details
AGLC
Haindl v Daisch [2011] NSWLEC 1145
Case
[2011] NSWLEC 1145
Decision Date
CaseChat Overview and Summary
Haindl v Daisch is a matter concerning the ownership of several trees located on the property to the west of the applicant's residence. The applicant, Haindl, sought an order under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 to determine whether the trees in question were a part of the property line and, as such, should be removed by the respondent, Daisch. The respondent argued that the trees were not a part of the property line and that the application should be dismissed.
The central legal issue was whether the trees in question were a part of the property line between the two properties. This required the court to consider the applicable law, including the Trees (Disputes Between Neighbours) Act 2006, and relevant case law. The court also needed to consider the evidence presented by both parties and determine whether the trees were a part of the property line or not.
The court found that the trees in question were not a part of the property line, as there was no evidence to support this claim. The court noted that the trees were planted some distance from the property line and that there was no documentary evidence or other proof to support the claim that the trees were a part of the property line. The court also found that the respondent had taken reasonable steps to maintain the trees and that they were not causing any harm to the applicant's property. As such, the application was dismissed.
Orders
Orders of the court
The application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 concerning three Weeping Fig trees and a Cheese Tree located on the property to the west of the applicants' property is dismissed.