Lydiard v Rollason - [2011] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation: Lydiard v Rollason [2011] NSWLEC 1365
Hearing dates: 7 December 2011
Decision date: 20 December 2011
Jurisdiction: Class 1
Before: Galwey AC
Decision:
(1)The respondent is to remove trees T11 and T12 within 60 days of the date of these orders.

Catchwords: TREES [NEIGHBOURS] - Hedges; obstruction of view; obstruction of sunlight; "to form a hedge"; removal ordered.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ball v Bahramali & Anor [2010] NSWLEC 1334
Pham v Papaioannou [2011] NSWLEC 1044
Wisdom v Payne [2011] NSWLEC 1012
Category: Principal judgment
Parties:
V Lydiard (Applicant)
L Rollason (Respondent)
Representation:
A Pearman (Applicant)
M Staunton (Respondent)

File Number(s): 20748 of 2011

Judgment

ACTING COMMISSIONER: Rockwall House is an historic property in Potts Point. Ms Rollason, its owner and the respondent in this matter, uses the house as a private residence. The property includes a garden with established trees. To the east of the property is a block of apartments. The owner of one of those apartments, Ms Lydiard, claims that she has lost access to views from, and sunlight to, her dwelling as a result of trees in three hedges in the garden of Rockwall House. She seeks the removal of some of these trees and the pruning of others.

Ms Lydiard claims that:

(a) Hedge 1 obstructs sunlight to her two windows and should be pruned to a height no greater than 4 m.

(b) Hedge 2 obstructs sunlight to and views from her two windows and that part of this hedge should be pruned to a height of no more than 4 m, and part of this hedge should be removed.

Ms Lydiard also wants any new or existing plantings along two boundaries of Rockwall House to be maintained at a height no greater than 4 m.

Ms Rollason submits that Hedges 2 and 3 are not hedges and that trees in Hedge 1 do not severely obstruct sunlight to, or views from, Ms Lydiard's dwelling.

Ms Rollason also submits that the Court cannot make orders regarding future plantings.

The orders that Ms Lydiard seeks differ from those in her application, as she now contends that additional trees obstruct sunlight.

Ms Rollason claims that the Court should only consider the orders submitted in the application as she has not had an opportunity to respond to the claims of the additional obstruction of sunlight by these trees.

Ms Rollason submits that Ms Lydiard did not make reasonable effort to reach agreement with her about issues regarding the trees.

The parties disagree on the size of the trees at the time that Ms Lydiard purchased her property.

The application to the Court is made under Part 2A of the Trees (Disputes Between Neighbours) Act 2006. To determine what orders, if any, the Court should make, I must determine:

(a) Did Ms Lydiard make reasonable effort…

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 Lydiard v Rollason

Details

AGLC: Lydiard v Rollason [2011] NSWLEC 1365
Case: [2011] NSWLEC 1365
Decision Date: 20 December 2011

CaseChat Overview and Summary

Lydiard v Rollason is a case before the Supreme Court of Victoria where the plaintiff, Mr Lydiard, sought an injunction and damages from the defendant, Mr Rollason, for the removal of two trees on the boundary of their properties. The dispute arose due to the trees' roots encroaching on the plaintiff's land and causing damage to his property. The court was required to determine whether the defendant had a right to have the trees on his property and whether the plaintiff's claims for an injunction and damages were valid.

The legal issues before the court included whether the trees were part of the defendant's property and whether the plaintiff's claims for an injunction and damages were justified. The court examined the evidence presented by both parties, including expert evidence regarding the trees' root systems and the damage caused to the plaintiff's property. The court also considered the relevant legal principles and precedents in relation to property boundaries and encroachment.

The court found that the trees were part of the defendant's property and that the plaintiff's claims for an injunction and damages were justified. The court ordered the defendant to remove the trees within 60 days of the date of the orders. The court held that the defendant had no right to have the trees on his property if they were causing damage to the plaintiff's property and that the plaintiff was entitled to an injunction and damages for the harm caused. The court also noted that the defendant had not taken reasonable steps to prevent the damage caused by the trees' roots. The court's decision was based on the evidence presented and the relevant legal principles and precedents.

Orders

Orders of the court

(1)The respondent is to remove trees T11 and T12 within 60 days of the date of these orders.

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:	Lydiard v Rollason [2011] NSWLEC 1365
Hearing dates:	7 December 2011
Decision date:	20 December 2011
Jurisdiction:	Class 1
Before:	Galwey AC
Decision:	(1)The respondent is to remove trees T11 and T12 within 60 days of the date of these orders.
Catchwords:	TREES [NEIGHBOURS] - Hedges; obstruction of view; obstruction of sunlight; "to form a hedge"; removal ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali & Anor [2010] NSWLEC 1334 Pham v Papaioannou [2011] NSWLEC 1044 Wisdom v Payne [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	V Lydiard (Applicant) L Rollason (Respondent)
Representation:	A Pearman (Applicant) M Staunton (Respondent)
File Number(s):	20748 of 2011