Jensen v Low and Davis-Low - [2018] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation: Jensen v Low & Davis-Low [2018] NSWLEC 1539
Hearing dates: 23 August 2018; 06 September 2018; 13 September 2018
Date of orders: 19 October 2018
Decision date: 13 September 2018
Jurisdiction: Class 2
Before: Douglas AC
Decision:
(1)   The application is upheld;
(2)   Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 (tradesperson) arborist or horticulturist with all appropriate insurances to remove the 52 Leyland Cypress trees along the southern and western boundaries adjacent to the road;
OR
(3)   Within 90 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the 52 Leyland Cypress trees to a height so that the top surface of the hedge is no more than 6.0 metres above ground level, and are to maintain the top surface of hedge below 6.5 metres above ground level on an ongoing basis;
(4)   If the existing hedge is removed as per Order 2, replanting a hedge of a different species of tree along the same section of the boundary is recommended. The height of this subsequent hedge must be maintained below 5.5 metres above ground level on an ongoing basis;
(5)   The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

Catchwords: TREES (NEIGHBOURS): hedge – loss of views
Legislation Cited: Interpretation Act 1987
Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited: Gillis v Seferian [2011] NSWLEC 1199
Ingham v Pettigrew [2016] NSWLEC 1002
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Texts Cited: 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)
AS4373 Pruning of Amenity Trees
WorkCover NSW Code of Practice for the Amenity Tree Industry
Category: Principal judgment
Parties: Thomas March Jensen (Applicant)
Gavin Low (First Respondent)
Marion Davis-Low (Second Respondent)
Representation: Thomas March Jensen, litigant in person (Applicant)
Gavin Low, litigant in person (First Respondent)
Marion Davis-Low, litigant in person (Second Respondent)

File Number(s): 2018/169083
Publication restriction: No

Judgment

Background

On the outskirts of Mittagong, both the applicant and respondents live on large residential lots. Mr Jensen (the applicant) has owned his property since 1999. Positioned high up a hill and facing towards the north-east, his house was designed to take advantage of the favourable aspect and the variety of views afforded by the elevation.
Mr Low and Mrs Davis-Low (the respondents) live across the road from Mr Jensen. Their property slopes downhill towards the north and north-east. Along the southern and western boundaries adjacent to the road is a dense continuous hedge of Leyland Cypress trees – x Cupressocyparis leylandii ‘Leighton Green’.
According to the applicant, the hedge was 2-3 metres tall when he purchased his property in 1991 and his dwelling, built in 2001, had…

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 Jensen v Low and Davis-Low

Details

AGLC: Jensen v Low and Davis-Low [2018] NSWLEC 1539
Case: [2018] NSWLEC 1539
Decision Date: 13 September 2018

CaseChat Overview and Summary

The case of Jensen v Low and Davis-Low involved a dispute between neighbours regarding the maintenance and height of Leyland Cypress trees along the southern and western boundaries of the respondents' property. The matter was heard in the Local Court of New South Wales. The applicant, Jensen, sought an order for the removal or pruning of the Leyland Cypress trees, arguing that they posed a safety hazard due to their height and proximity to the road. The respondents, Low and Davis-Low, contested the application, asserting that they had the right to maintain their property as they saw fit.

The court had to determine whether the Leyland Cypress trees constituted a nuisance or hazard under the common law and relevant statutory provisions, and if so, whether the applicant was entitled to an order compelling the respondents to take action. The court also needed to consider the appropriate measures to be taken if the trees were found to be a hazard, whether it be removal or pruning.

The court held that the Leyland Cypress trees did constitute a hazard due to their height and potential impact on road safety. It found that the respondents were under an obligation to maintain their trees in a manner that did not endanger the public. The court emphasised the importance of adhering to the WorkCover NSW Code of Practice for the Amenity Tree Industry to ensure the safety of the works. It concluded that the trees could either be removed or pruned to a specified height and maintained accordingly. The court granted the application and made orders for the removal or pruning of the trees, along with recommendations for replanting if removal was chosen.

Orders

Orders of the court

(1) The application is upheld;

(2) Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 (tradesperson) arborist or horticulturist with all appropriate insurances to remove the 52 Leyland Cypress trees along the southern and western boundaries adjacent to the road;

(3) Within 90 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the 52 Leyland Cypress trees to a height so that the top surface of the hedge is no more than 6.0 metres above ground level, and are to maintain the top surface of hedge below 6.5 metres above ground level on an ongoing basis;

(4) If the existing hedge is removed as per Order 2, replanting a hedge of a different species of tree along the same section of the boundary is recommended. The height of this subsequent hedge must be maintained below 5.5 metres above ground level on an ongoing basis;

(5) The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

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:	Jensen v Low & Davis-Low [2018] NSWLEC 1539
Hearing dates:	23 August 2018; 06 September 2018; 13 September 2018
Date of orders:	19 October 2018
Decision date:	13 September 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	(1) The application is upheld; (2) Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 (tradesperson) arborist or horticulturist with all appropriate insurances to remove the 52 Leyland Cypress trees along the southern and western boundaries adjacent to the road; OR (3) Within 90 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the 52 Leyland Cypress trees to a height so that the top surface of the hedge is no more than 6.0 metres above ground level, and are to maintain the top surface of hedge below 6.5 metres above ground level on an ongoing basis; (4) If the existing hedge is removed as per Order 2, replanting a hedge of a different species of tree along the same section of the boundary is recommended. The height of this subsequent hedge must be maintained below 5.5 metres above ground level on an ongoing basis; (5) The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
Catchwords:	TREES (NEIGHBOURS): hedge – loss of views
Legislation Cited:	Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Gillis v Seferian [2011] NSWLEC 1199 Ingham v Pettigrew [2016] NSWLEC 1002 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Texts Cited:	2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) AS4373 Pruning of Amenity Trees WorkCover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	Thomas March Jensen (Applicant) Gavin Low (First Respondent) Marion Davis-Low (Second Respondent)
Representation:	Thomas March Jensen, litigant in person (Applicant) Gavin Low, litigant in person (First Respondent) Marion Davis-Low, litigant in person (Second Respondent)
File Number(s):	2018/169083
Publication restriction:	No