Murphy v Moeskops - [2021] NSWLEC 1686

Land and Environment Court

New South Wales

Medium Neutral Citation: Murphy v Moeskops [2021] NSWLEC 1686
Hearing dates: 15 September 2021
Date of orders: 9 November 2021
Decision date: 09 November 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is granted to the extent of the orders below.
(2) Within 30 days of the date of these orders, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge along the respondent’s common boundary with the applicants’ property so that they are no more than 50 centimetres above the common boundary fence, stepping up or down with the fence along the hedge as might be the case, and so that no parts of the trees overhang the applicants’ property.
(3) The respondent is to give the applicants at least 2 days’ notice of the pruning in order (2) and is to remove any debris from the pruning in order (2) from the applicants’ property should the applicants wish.
(4) Until the lilly pilly trees in the hedge along the respondent’s common boundary with the applicants’ property are removed, during April each year beginning April 2022, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge so that they are no more than one metre above the common boundary fence, stepping up or down with the fence along the hedge as might be the case.
(5) Periodically, as they see fit, the applicants are to prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further.
(6) The exhibits are returned except for A, B and 1.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight and views – whether trees are planted so as to form a hedge – whether the obstruction is severe – height of the trees when the applicants purchased their property – privacy – pruning ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 6, 14A, 14B, 14D, 14E, 14F

Cases Cited:
Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:
Newcastle Development Control Plan 2012
NSW Department of Justice and Attorney General,
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), (November 2009)

Category: Principal judgment
Parties: Richard Murphy (First Applicant)
Chris Murphy, aka Ya-Hui Hsu (Second Applicant)
Christopher Moeskops (Respondent)
Representation:
Counsel:
R Murphy (Litigant in Person) (First Applicant)
C Murphy (Litigant in Person) (Second Applicant)
M Skinner (Solicitor) (Respondent)
Solicitors:
O’Hearn Lawyers (Respondent)

File Number(s): 2021/159726
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: As its name proclaims, The Hill rises above the surrounding beaches, parks and Newcastle’s CBD, its residential lots filled with historic houses and units. Richard and Chris Murphy (‘the applicants’) own a three-level building on the hill, in The Hill. They live in the dwelling on…

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 Murphy v Moeskops

Details

AGLC: Murphy v Moeskops [2021] NSWLEC 1686
Case: [2021] NSWLEC 1686
Decision Date: 09 November 2021

CaseChat Overview and Summary

The matter of Murphy v Moeskops was heard in the Local Court of New South Wales. The applicants, the Murphys, sought an order to address the overhanging branches of lilly pilly trees that belong to the respondents, the Moeskops. The trees are situated in a hedge along the common boundary of their properties, causing inconvenience to the Murphys. The dispute centred on the responsibility of maintaining the trees to ensure they did not overhang the Murphys’ property and the measures to be taken if they did. The court was required to determine the rights and obligations of both parties under the common law principles of neighbourliness and private nuisance, as well as any statutory obligations that may apply.

The central legal issues for the court to decide were whether the Moeskops had a duty to maintain the lilly pilly trees in a manner that did not interfere with the Murphys’ enjoyment of their property, and if so, what specific actions the Moeskops were required to take to fulfil that duty. The court had to balance the rights of the Moeskops to maintain their property with the Murphys’ right to use and enjoy their property without unreasonable interference. Furthermore, the court had to consider the appropriate remedies to be granted to the Murphys if the Moeskops were found to be in breach of their obligations.

The court found that the Moeskops had a duty to maintain the trees in a way that did not cause harm or inconvenience to the Murphys. The court held that the Moeskops were required to prune the trees to a height that did not overhang the Murphys’ property, with specific instructions on the height and frequency of the pruning. The court also determined that the Murphys could prune any branches that did overhang their property back to the boundary line. The court issued detailed orders for the maintenance of the trees, including the timelines for pruning and the removal of debris, as well as the ongoing maintenance responsibilities of both parties. The court’s decision was based on the need to balance the rights of both parties and to provide a practical and enforceable solution to the dispute.

Orders

Orders of the court

The Court orders that:

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

(2) Within 30 days of the date of these orders, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge along the respondent’s common boundary with the applicants’ property so that they are no more than 50 centimetres above the common boundary fence, stepping up or down with the fence along the hedge as might be the case, and so that no parts of the trees overhang the applicants’ property.

(3) The respondent is to give the applicants at least 2 days’ notice of the pruning in order (2) and is to remove any debris from the pruning in order (2) from the applicants’ property should the applicants wish.

(4) Until the lilly pilly trees in the hedge along the respondent’s common boundary with the applicants’ property are removed, during April each year beginning April 2022, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge so that they are no more than one metre above the common boundary fence, stepping up or down with the fence along the hedge as might be the case.

(5) Periodically, as they see fit, the applicants are to prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further.

(6) The exhibits are returned except for A, B and 1.

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:	Murphy v Moeskops [2021] NSWLEC 1686
Hearing dates:	15 September 2021
Date of orders:	9 November 2021
Decision date:	09 November 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted to the extent of the orders below. (2) Within 30 days of the date of these orders, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge along the respondent’s common boundary with the applicants’ property so that they are no more than 50 centimetres above the common boundary fence, stepping up or down with the fence along the hedge as might be the case, and so that no parts of the trees overhang the applicants’ property. (3) The respondent is to give the applicants at least 2 days’ notice of the pruning in order (2) and is to remove any debris from the pruning in order (2) from the applicants’ property should the applicants wish. (4) Until the lilly pilly trees in the hedge along the respondent’s common boundary with the applicants’ property are removed, during April each year beginning April 2022, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge so that they are no more than one metre above the common boundary fence, stepping up or down with the fence along the hedge as might be the case. (5) Periodically, as they see fit, the applicants are to prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further. (6) The exhibits are returned except for A, B and 1.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight and views – whether trees are planted so as to form a hedge – whether the obstruction is severe – height of the trees when the applicants purchased their property – privacy – pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 6, 14A, 14B, 14D, 14E, 14F
Cases Cited:	Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462
Texts Cited:	Newcastle Development Control Plan 2012 NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), (November 2009)
Category:	Principal judgment
Parties:	Richard Murphy (First Applicant) Chris Murphy, aka Ya-Hui Hsu (Second Applicant) Christopher Moeskops (Respondent)
Representation:	Counsel: R Murphy (Litigant in Person) (First Applicant) C Murphy (Litigant in Person) (Second Applicant) M Skinner (Solicitor) (Respondent) Solicitors: O’Hearn Lawyers (Respondent)
File Number(s):	2021/159726
Publication restriction:	No