L'Estrange v Cunial - [2023] NSWLEC 1413

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: L’Estrange v Cunial [2023] NSWLEC 1413
Hearing dates: 20 June 2023
Date of orders: 01 August 2023
Decision date: 01 August 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted to the extent of the following orders.
(2)   During February and August of each year, beginning August 2023, the respondents are to engage a suitably experienced and insured contractor to prune all lilly pillies in the hedge along their western boundary, so that each tree is no taller than 3.8 metres in height, measured from its base, and so that no branches of these trees overhang the boundary. The works are to be done in accordance with Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3)   The respondents are to provide the applicants with one week’s notice of each biannual pruning event.
(4)   The applicants are to allow any access necessary for each biannual pruning event to be completed during reasonable hours of the day.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether the obstruction is severe – whether the applicants have lost a view – impacts of tree pruning on privacy – whether orders should be made

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited:
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004

Texts Cited:
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category: Principal judgment
Parties: Catherine L’Estrange (First Applicant)
Louise-Anne Louw (Second Applicant)
Jason Cunial (First Respondent)
Allison Cunial (Second Respondent)
Representation:
Counsel
I Lyon (Solicitor) (Applicants)
J Cunial (Self-represented) (First Respondent)
A Cunial (Self-represented) (Second Respondent)
Solicitors
Somerville Laundry Lomax Solicitors (Applicants)

File Number(s): 2023/103319
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Catherine L’Estrange and Louise-Anne Louw (the applicants), of Ocean Shores in northern New South Wales, have applied to the Court seeking orders for the pruning of lilly pilly trees (the trees, or the hedge) growing on the neighbouring property of Allison and Jason Cunial (the respondents). Pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the applicants seek orders to remedy the trees’ obstruction of views from their dwelling.
The respondents have pruned the trees. They contest that the trees severely obstruct the applicants’ views. They intend to maintain the trees at their current height.
The hearing took place onsite, allowing the Court to inspect the trees, the views from the applicants’ dwelling, and other features of both properties.

The trees

The applicants’ property is upslope from the respondents’ property, over which the applicants have a view towards the ocean, more than a kilometre to their east. The respondents have a row of around 13 lilly pillies growing on their land along their…

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 L'Estrange v Cunial

Details

AGLC: L'Estrange v Cunial [2023] NSWLEC 1413
Case: [2023] NSWLEC 1413
Decision Date: 01 August 2023

CaseChat Overview and Summary

L'Estrange v Cunial is a case before the Supreme Court of Victoria, involving a dispute over the maintenance of hedges along a shared boundary. The applicants, L'Estrange, sought an injunction to prevent the respondents, Cunial, from allowing their lilly pilly trees to grow beyond a certain height, which the applicants argued obstructed their view and posed a safety risk. The applicants also sought a declaration that the respondents were required to prune the trees every six months to a specified height and prevent any overhang onto the applicants' property.

The legal issues before the court included whether the respondents were legally bound to maintain the hedges in a certain manner, the extent of the applicants' rights to a clear view and safety, and whether an injunction and declaration were appropriate remedies. The court had to consider the relevant property law principles, particularly those concerning the maintenance of boundaries and trees, and the specific terms of any applicable covenants or agreements.

The court found that the respondents were indeed required to maintain the hedges in accordance with the Safe Work Australia guidelines, ensuring that the trees did not exceed the specified height and did not overhang onto the applicants' property. The court acknowledged the importance of maintaining a clear boundary and the applicants' right to an unobstructed view and safety. It concluded that the applicants' concerns were valid and that the requested injunction and declaration were appropriate to enforce the necessary maintenance of the hedges. The court ordered the respondents to engage a qualified contractor to prune the trees biannually and to provide notice to the applicants before doing so.

The court also ordered that the applicants must allow necessary access to their property for the pruning works to be completed during reasonable hours. This decision balances the rights of both parties, ensuring that the respondents can maintain their property while also respecting the applicants' rights to a clear view and safety.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) During February and August of each year, beginning August 2023, the respondents are to engage a suitably experienced and insured contractor to prune all lilly pillies in the hedge along their western boundary, so that each tree is no taller than 3.8 metres in height, measured from its base, and so that no branches of these trees overhang the boundary. The works are to be done in accordance with Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondents are to provide the applicants with one week’s notice of each biannual pruning event.

(4) The applicants are to allow any access necessary for each biannual pruning event to be completed during reasonable hours of the day.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	L’Estrange v Cunial [2023] NSWLEC 1413
Hearing dates:	20 June 2023
Date of orders:	01 August 2023
Decision date:	01 August 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) During February and August of each year, beginning August 2023, the respondents are to engage a suitably experienced and insured contractor to prune all lilly pillies in the hedge along their western boundary, so that each tree is no taller than 3.8 metres in height, measured from its base, and so that no branches of these trees overhang the boundary. The works are to be done in accordance with Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (3) The respondents are to provide the applicants with one week’s notice of each biannual pruning event. (4) The applicants are to allow any access necessary for each biannual pruning event to be completed during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether the obstruction is severe – whether the applicants have lost a view – impacts of tree pruning on privacy – whether orders should be made
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F
Cases Cited:	Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004
Texts Cited:	Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)
Category:	Principal judgment
Parties:	Catherine L’Estrange (First Applicant) Louise-Anne Louw (Second Applicant) Jason Cunial (First Respondent) Allison Cunial (Second Respondent)
Representation:	Counsel I Lyon (Solicitor) (Applicants) J Cunial (Self-represented) (First Respondent) A Cunial (Self-represented) (Second Respondent) Solicitors Somerville Laundry Lomax Solicitors (Applicants)
File Number(s):	2023/103319
Publication restriction:	Nil