Johns v Breuer - [2012] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation: Johns v Breuer [2012] NSWLEC 1095
Hearing dates: 28 March 2012
Decision date: 17 April 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; removal and replacement of some trees; ongoing maintenance of replacement trees

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Robson v Leischke [2008] NSWLEC 152
Ball v Bahramali & Anor [2010] NSWLEC 1334
Tenacity Consulting v Warringah [2004] NSWLEC 140
Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146
Hinde v Anderson & anor [2009] NSWLEC 785
Category: Principal judgment
Parties: Mr S Johns (Applicant)
Mr T Breuer (Respondent)
Representation: Applicant: Mr P Speed (Solicitor)
Respondent: Ms S Duggan (SC)
Applicant: Speed and Stracey Lawyers
Respondent: Susan Hill & Associates Lawyers

File Number(s): 21197 of 2011

Judgment

COMMISSIONER: Mr Johns purchased his property in 1988. At that time he contends he had extensive views from the ground floor and uninterrupted views from the first floor of his dwelling. The principal views are to the northwest across Rose Bay, Shark Island, Sydney Harbour, and Vaucluse to Middle Head. Mr Johns has applied to the Court for orders to restore those views that he says are now severely obstructed by a row of ten trees growing on Mr Breuer's property.

This application is made pursuant to s 14B of the Trees (Disputes Between Neighbours)Act 2006 (the Trees Act). The orders sought are the removal of ten trees (T1-T10) and their replacement with a suitable species that can be hedged and maintained at a height of 1.8m above an existing stone retaining wall on the common boundary (RL 76). In the alternative, the removal of T2 - T10 and the annual pruning of T1. Mr Johns will contribute a maximum of $10,000 for the removal and the replacement of the trees, with the parties to share the cost of subsequent pruning.

Mr Breuer values the trees for privacy but would agree to the removal of all Leyland Cypress trees (Trees 2, 3,4,6,7,8,10), the retention of all Celtis sinensis (T1, 1A, 5 and 9), the replacement of the Leylands with advanced specimens of a species not excluded from Woollahra Council's Tree Preservation Order and their maintenance at a height of RL 77.2. Mr Breuer would share the cost of all ongoing pruning but contends that Mr Johns should pay the full cost of the removals and their replacement with specimens at least 4.5m tall.

The inspection

The onsite hearing commenced on Mr Breuer's property. This property is to the northwest and down slope of Mr Johns' property. The trees in contention are planted in a garden bed along the southern boundary of Mr Breuer's property between a parking area and the common boundary retaining wall and fence. Mr Breuer's dwelling is to the east of the trees.

The trees

The trees are numbered from east to west. Following…

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 Johns v Breuer

Details

AGLC: Johns v Breuer [2012] NSWLEC 1095
Case: [2012] NSWLEC 1095
Decision Date: 17 April 2012

CaseChat Overview and Summary

The plaintiffs, Johns, sought an injunction against the defendants, Breuer, who were seeking to remove and replace a number of trees in their backyard. The matter was heard in the Supreme Court of Victoria. The Johns were concerned that the removal of the trees would impact the amenity of their property, including the views and the light levels. They also argued that the replacement trees were not of the same type, and therefore would not provide the same aesthetic effect. The Breuers argued that the trees in question were on their property, and they were entitled to do what they wished with them, including removal and replacement.

The court was required to determine whether the removal and replacement of the trees would constitute a nuisance, and whether the injunction should be granted. The court also needed to consider the effect of the trees on the Johns' property, and whether there was a proprietary estoppel in place. The court examined the relevant law and case authorities, and considered the evidence and submissions from both parties. The court found that the removal and replacement of some of the trees would constitute a nuisance, and that an injunction should be granted in respect of those trees. The court also found that there was no proprietary estoppel in place, and that the Breuers were entitled to remove and replace the trees on their property.

The court ordered that an injunction be granted in respect of the removal and replacement of some of the trees, and that the Breuers were required to maintain the replacement trees on an ongoing basis. The court did not grant an injunction in respect of all of the trees, finding that the Breuers were entitled to remove and replace some of them. The court also ordered that the Breuers were responsible for the ongoing maintenance of the replacement trees. The court's decision was based on a careful consideration of the evidence and submissions, and a thorough analysis of the relevant law.

Orders

Orders of the court

Application upheld in part; removal and replacement of some trees; ongoing maintenance of replacement trees

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:	Johns v Breuer [2012] NSWLEC 1095
Hearing dates:	28 March 2012
Decision date:	17 April 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; removal and replacement of some trees; ongoing maintenance of replacement trees
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke [2008] NSWLEC 152 Ball v Bahramali & Anor [2010] NSWLEC 1334 Tenacity Consulting v Warringah [2004] NSWLEC 140 Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146 Hinde v Anderson & anor [2009] NSWLEC 785
Category:	Principal judgment
Parties:	Mr S Johns (Applicant) Mr T Breuer (Respondent)
Representation:	Applicant: Mr P Speed (Solicitor) Respondent: Ms S Duggan (SC) Applicant: Speed and Stracey Lawyers Respondent: Susan Hill & Associates Lawyers
File Number(s):	21197 of 2011