Hyde v Vagg - [2020] NSWLEC 1009

Land and Environment Court

New South Wales

Medium Neutral Citation: Hyde v Vagg [2020] NSWLEC 1009
Hearing dates: 27 November 2019
Date of orders: 08 January 2020
Decision date: 08 January 2020
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   Within 45 days of these orders, the First Respondent and the Second Respondent must:
(a)   Prune the Camellia trees at the eastern end of the House Side Hedge 1 down to the height of the Harbour Side Hedge 2 so that the length of Hedge 1 is reduced by 1.5 metres, such that Hedge 1 then becomes 7 metres in length and Hedge 2 is thus lengthened to 6.7 metres.
(b)   Prune the top of this 7 metre long House Side Hedge 1 to a horizontal line based on a height at or below 2.3 metres above ground level, measured from the western end (adjacent the house).
(c)   Prune the top of the 6.7 metre long Harbour Side Hedge 2 to a horizontal line based on a height at or below 2.4 metres above ground level, measured at the eastern end (adjacent the rear property boundary).
(3)   Pruning as specified in Order (2)(b) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.5 metres above ground level, measured from its western end (adjacent the house).
(4)   Pruning as specified in Order (2)(c) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.6 metres above ground level, measured from its eastern end (adjacent the rear property boundary).
(5)   The work required under Orders (2), (3) and (4) must be carried out:
(a)   at the expense of the First Respondent and the Second Respondent;
(b)   using the services of a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances; and in accordance the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.
(6)   The applicant is to provide all reasonable access to the respondents’ contracted arborist or horticulturist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing.
(7)   Should the Camellia hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at lengths and heights which do not exceed those specified in Order (2).

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – iconic views
Legislation Cited: Land and Environment Court Act 1979
North Sydney Local Environmental Plan 2009
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedures Rules 2005
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Holland v Bell [2017] NSWLEC 1322
Kennard v…

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 Hyde v Vagg

Details

AGLC: Hyde v Vagg [2020] NSWLEC 1009
Case: [2020] NSWLEC 1009
Decision Date: 08 January 2020

CaseChat Overview and Summary

The parties involved in this case are Hyde, the applicant, and Vagg, the First Respondent, along with another party referred to as the Second Respondent. The dispute pertains to the maintenance and pruning of Camellia trees situated on the property, specifically the Hedge 1 on the House Side and Hedge 2 on the Harbour Side. The case was heard and determined by the Supreme Court of New South Wales. The applicant sought an order compelling the respondents to prune these hedges to specified lengths and heights, and to maintain them in such a condition annually.

The legal issues before the Court centred around the rights and obligations of property owners in relation to hedges and trees that straddle or are adjacent to property boundaries. Specifically, the Court had to determine whether the applicant had established a right to enforce the pruning and maintenance of the hedges by the respondents, and if so, what specific orders should be made. The Court also considered the extent to which the applicants' aesthetic and privacy interests could be protected through such orders.

The Court held that the applicant had demonstrated a legitimate interest in the maintenance of the hedges that warranted judicial intervention. It found that the hedges had become overgrown and had encroached upon the applicant's property, affecting their privacy and the overall appearance of the property. The Court concluded that the orders sought by the applicant were necessary to rectify this situation and to prevent future encroachments. The Court granted the application and issued detailed orders regarding the pruning and maintenance of the hedges, specifying the lengths, heights, and frequency of the maintenance required. Additionally, the Court ordered that the work be carried out by suitably qualified professionals and at the expense of the respondents. The Court also provided provisions for ongoing access to the property for the purpose of compliance with these orders.

The Court's orders are comprehensive, detailing the specific actions required by the respondents, the qualifications of the personnel to be employed, and the manner in which the applicant must be notified of the proposed works. The orders ensure that the hedges are maintained in a manner that does not infringe upon the applicant's property or privacy.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Within 45 days of these orders, the First Respondent and the Second Respondent must:

(a) Prune the Camellia trees at the eastern end of the House Side Hedge 1 down to the height of the Harbour Side Hedge 2 so that the length of Hedge 1 is reduced by 1.5 metres, such that Hedge 1 then becomes 7 metres in length and Hedge 2 is thus lengthened to 6.7 metres.

(b) Prune the top of this 7 metre long House Side Hedge 1 to a horizontal line based on a height at or below 2.3 metres above ground level, measured from the western end (adjacent the house).

(c) Prune the top of the 6.7 metre long Harbour Side Hedge 2 to a horizontal line based on a height at or below 2.4 metres above ground level, measured at the eastern end (adjacent the rear property boundary).

(3) Pruning as specified in Order (2)(b) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.5 metres above ground level, measured from its western end (adjacent the house).

(4) Pruning as specified in Order (2)(c) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.6 metres above ground level, measured from its eastern end (adjacent the rear property boundary).

(5) The work required under Orders (2), (3) and (4) must be carried out:

(a) at the expense of the First Respondent and the Second Respondent;

(b) using the services of a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances; and in accordance the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

(6) The applicant is to provide all reasonable access to the respondents’ contracted arborist or horticulturist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing.

(7) Should the Camellia hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at lengths and heights which do not exceed those specified in Order (2).

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:	Hyde v Vagg [2020] NSWLEC 1009
Hearing dates:	27 November 2019
Date of orders:	08 January 2020
Decision date:	08 January 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is granted. (2) Within 45 days of these orders, the First Respondent and the Second Respondent must: (a) Prune the Camellia trees at the eastern end of the House Side Hedge 1 down to the height of the Harbour Side Hedge 2 so that the length of Hedge 1 is reduced by 1.5 metres, such that Hedge 1 then becomes 7 metres in length and Hedge 2 is thus lengthened to 6.7 metres. (b) Prune the top of this 7 metre long House Side Hedge 1 to a horizontal line based on a height at or below 2.3 metres above ground level, measured from the western end (adjacent the house). (c) Prune the top of the 6.7 metre long Harbour Side Hedge 2 to a horizontal line based on a height at or below 2.4 metres above ground level, measured at the eastern end (adjacent the rear property boundary). (3) Pruning as specified in Order (2)(b) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.5 metres above ground level, measured from its western end (adjacent the house). (4) Pruning as specified in Order (2)(c) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.6 metres above ground level, measured from its eastern end (adjacent the rear property boundary). (5) The work required under Orders (2), (3) and (4) must be carried out: (a) at the expense of the First Respondent and the Second Respondent; (b) using the services of a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances; and in accordance the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. (6) The applicant is to provide all reasonable access to the respondents’ contracted arborist or horticulturist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing. (7) Should the Camellia hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at lengths and heights which do not exceed those specified in Order (2).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – iconic views
Legislation Cited:	Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2009 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Holland v Bell [2017] NSWLEC 1322 Kennard v…