TREES (NEIGHBOURS) :- hedges; extension of Tree Dispute Principle in Barker v Kyriakides - obligation in urban areas to clean paths etc that are overshadowed by trees; extent of overshadowing for the purposes of assesing severity is not cumulative with other overshadowing but is confined to the overshadowing by the trees forming a hedge
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
1 SENIOR COMMISSIONER: Mr and Mrs Hendry live in a property that is to the south of the property owned by Mr and Mrs Olsson. Mr and Mrs Hendry’s property has, for approximately seventy per cent of its boundary (comprising the more eastern elements of their boundary) a common boundary with part of the southern boundary of the Olssons’ property. Although not oriented in a precisely north/south fashion, Mr and Mrs Hendry’s allotment is generally so oriented so that the Hendrys’ property is to the north of their property.
2 Mr and Mrs Hendry have made two applications pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act), which applications relate to trees located on the Olssons’ land. The first application is an application made pursuant to s 7 of the Act and the second is an application made pursuant to s 14B of the Act. Each of the applications is made with respect to seven trees located on the Olssons’ property.
3 The first application under s 7 of the Act alleges that the combined effect of the trees on the Olssons’ property (by shading some steps and portion of a paved area under a pergola) cause a risk of injury to the Hendrys and that that satisfies the test under s 10(2)(b) of the Act to give us jurisdiction to consider other matters.
4 The second element that they raise is the deposition of [primarily] seeds but other detritus causing gutter blockages and nuisance caused by the deposition and the necessity to clean up the deposition of material on their property, that coming primarily from the more southern of the two Cocos palms located on the Olssons’ property.
5 The application that is made under s 14B of the Act is that the trees on the Olssons’ property, either together or in some subsidiary combinations, constitute a hedge…
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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AGLC
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Case
[2010] NSWLEC 1302
Decision Date
CaseChat Overview and Summary
The case of Hendry & Anor v Olsson & Anor involved a dispute between neighbours regarding the impact of trees on the Olssons' property on the Hendrys' property. The applicants, Mr and Mrs Hendry, sought relief under the Trees (Disputes Between Neighbours) Act 2006, alleging that the trees on the Olssons' property caused a risk of injury to the Hendrys, blocked sunlight to their windows, and led to the deposition of seeds and debris, causing inconvenience. The court was required to determine whether the trees constituted a hedge under the Act, and if so, whether they caused a severe obstruction of sunlight to the Hendrys' windows. The court also had to decide whether the applicants' claims regarding the risk of injury and the deposition of seeds and debris were within its jurisdiction.
The court found that while there were hedges on the Olssons' property, they did not cause a severe obstruction of sunlight to the Hendrys' windows. The court held that the overshadowing by the trees did not accumulate with other overshadowing, such as from a shade cloth or the eaves of the Hendrys' property. The court also found that the applicants' claims regarding the risk of injury and the deposition of seeds and debris were outside its jurisdiction, as they did not relate to the obstruction of sunlight to a window. The court dismissed both applications, finding that the applicants had not satisfied the jurisdictional requirements of the Act.
The court's decision was based on a careful analysis of the evidence presented and the applicable legal principles. The court found that the applicants had not established that the trees on the Olssons' property caused a severe obstruction of sunlight to their windows, and that their claims regarding the risk of injury and the deposition of seeds and debris were outside the jurisdiction of the court. The court's decision was consistent with the principles established in previous cases, such as Barker v Kyriakides, and reflected a balanced approach to the resolution of disputes between neighbours regarding the impact of trees on neighbouring properties.