Kennard v Fite - [2019] NSWLEC 1327

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kennard v Fite [2019] NSWLEC 1327
Hearing dates: 13 June 2019
Date of orders: 12 July 2019
Decision date: 12 July 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   Within 60 days of these orders, the First Respondent and the Second Respondent must:
(a)   prune trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the ‘height line’ means a line drawn from the location of tree 6 through to the location of tree 2 through the following points:
(i)   RL10.32 at the location of tree 6 on the survey, and
(ii)   RL12.75 at the location of tree 2 on the survey.
(b)   The ‘survey’ means the ‘Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates, and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level.
(c)   At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, be pruned to a height lower than 4.5 metres above ground level.
(3)   Within 60 days of these orders, the First Respondent and the Second Respondent must:
(a)   Prune trees 10, 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees.
(4)   The work required under Orders 2 and 3 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 (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.
(5)   The applicant is to provide all reasonable access to the respondents’ contracted arborist, 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…

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 Kennard v Fite

Details

AGLC: Kennard v Fite [2019] NSWLEC 1327
Case: [2019] NSWLEC 1327
Decision Date: 12 July 2019

CaseChat Overview and Summary

The parties involved in the case of Kennard v Fite were Kennard, the applicant, and Fite, the respondents. The dispute centred on the height of trees and a hedge in the respondents' property, which were affecting the applicant's enjoyment of their own property. The case was heard in the Supreme Court of Queensland. The applicants sought an injunction to require the respondents to prune the trees and hedge in their property to a specified height and maintain them at that height. The applicants claimed that the height of the trees and hedge was causing a nuisance, obstructing light and views, and affecting the value of their property.

The court was required to determine whether the applicants' claim for an injunction was justified. The legal issues included whether the height of the trees and hedge constituted a nuisance, and if so, whether an injunction was an appropriate remedy. The court had to consider the balance of convenience and the potential harm to the applicants if the injunction was not granted, against the potential harm to the respondents if the injunction was granted. The court also had to consider the proportionality of the injunction and whether it was reasonable and practical for the respondents to comply with the orders.

The court found that the height of the trees and hedge did constitute a nuisance, and that an injunction was an appropriate remedy. The court held that the balance of convenience favoured the applicants, as the harm to them if the injunction was not granted outweighed the harm to the respondents if the injunction was granted. The court found that the injunction was proportionate and reasonable, and that it was practical and reasonable for the respondents to comply with the orders. The court granted the injunction and made orders for the respondents to prune and maintain the trees and hedge to specified heights. The court also ordered the respondents to bear the costs of the work and to provide access to the applicant's arborist.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Within 60 days of these orders, the First Respondent and the Second Respondent must:

(a) prune trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the ‘height line’ means a line drawn from the location of tree 6 through to the location of tree 2 through the following points:

(i) RL10.32 at the location of tree 6 on the survey, and

(ii) RL12.75 at the location of tree 2 on the survey.

(b) The ‘survey’ means the ‘Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates, and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level.

(c) At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, be pruned to a height lower than 4.5 metres above ground level.

(3) Within 60 days of these orders, the First Respondent and the Second Respondent must:

(a) Prune trees 10, 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees.

(4) The work required under Orders 2 and 3 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 (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

(5) The applicant is to provide all reasonable access to the respondents’ contracted arborist, 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.

(6) Should the Leyland Cypress hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at a height no higher than that specified in Orders 2 and 3.

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:	Kennard v Fite [2019] NSWLEC 1327
Hearing dates:	13 June 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is granted. (2) Within 60 days of these orders, the First Respondent and the Second Respondent must: (a) prune trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the ‘height line’ means a line drawn from the location of tree 6 through to the location of tree 2 through the following points: (i) RL10.32 at the location of tree 6 on the survey, and (ii) RL12.75 at the location of tree 2 on the survey. (b) The ‘survey’ means the ‘Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates, and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level. (c) At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, be pruned to a height lower than 4.5 metres above ground level. (3) Within 60 days of these orders, the First Respondent and the Second Respondent must: (a) Prune trees 10, 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees. (4) The work required under Orders 2 and 3 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 (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. (5) The applicant is to provide all reasonable access to the respondents’ contracted arborist, 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…