Morrison v Ackland

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morrison v Ackland [2022] NSWLEC 1413

Hearing dates:

Conciliation conference on 11 May 2022

Date of orders:

10 August 2022

Decision date:

10 August 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [25].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – agreement between the parties – conciliation conference – orders – obstruction of view by Magnolia tree – does the tree form a hedge – damage to retaining wall caused by trees

Legislation Cited:

Land and Environment Court Act 1979, s34(3), s34 (10)

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12; Pt 2A, s 14A

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Category:

Principal judgment

Parties:

Nolene Morrison (Applicant)
John Mervyn Ackland (Respondent)

Representation:

Cassandra Graves (Solicitor) (Applicant)
Nathan Jessop (Solicitor) (Respondent)

Solicitors:
WMD Law (Applicant)
Corbett Jessop Law (Respondent)

File Number(s):

2022/76642

Publication restriction:

No

Judgment

1. COMMISSIONER: John Ackland and Nolene Morrison share a side boundary between their properties, located on a steeply sloping street in Caringbah South, directly overlooking Yowie Bay to the north-west. Mr Ackland’s property is located higher up the hill than Ms Morrison’s.

2. This is an unusual situation for ‘tree matters’, where Mr Ackland submitted an application (File No. 22/9824) with the Land and Environment Court (the Court) on 12 January 2022, pursuant to s 14 of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking pruning of Ms Morrison’s Magnolia grandiflora (Bull Bay Magnolia) (the tree) to remedy a claimed severe obstruction of a view.

3. On 17 March 2022, Ms Morrison also lodged an application with the Court, pursuant to s 7 of Part 2 of the Trees Act seeking to remedy damage that she claims Mr Ackland’s trees are causing to the shared boundary fence and retaining wall.

4. Consequently, directions were made by the Registrar of the Court on 5 April 2022, for the applications to be heard together at a conciliation conference under the jurisdiction of s 34 of the Land and Environment Court Act1979 (LEC Act). For the sake of this judgment, in keeping with the parties intentions under the terms of their subsequent consent orders, Ms Morrison is the applicant and Mr Ackland, the respondent.

On site hearing

5. The conciliation conference was conducted on-site. The Bull Bay Magnolia, located near the centre of the respondent’s front yard, was inspected initially from both properties and Mr Ackland took the Court to observe the view obstruction from both levels of his house. Mr Ackland’s view was clearly obstructed as a result of the tree.

6. Moving to address the issues in Ms Morrison’s application, the hardwood sleeper retaining wall, about 1.5m tall, separates the properties and stabilises Mr Ackland’s land. The applicant indicated where the retaining wall and the integrated fence built above it were being prised out of alignment and damaged by roots from four trees growing closely adjacent to the top of the retaining…