Palmer v Elias - [2022] NSWLEC 1671

Land and Environment Court

New South Wales

Medium Neutral Citation: Palmer v Elias [2022] NSWLEC 1671
Hearing dates: 15 September 2022
Date of orders: 15 September 2022
Decision date: 15 September 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant’s concrete balcony floor.
(2) During the last 14 days of March 2023 and during the last 14 days of September 2023, and during the same period of March and September of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant’s concrete balcony floor.
(3) The pruning works shall be completed by an AQF level 3 qualified arborist or horticulturist who holds all appropriate insurances.
(4) All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(5) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works.
(6) The tree removal works shall be undertaken during reasonable daytime working hours.
(7) The applicant may prune bamboo culms (stems) that protrude into her property to approximately the height specified in orders (1) and (2).

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – balancing views and privacy - damage to gutter in near future

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Pt 2 ss 7, 8, 10, 12, Pt 2A ss, 14A, 14B, 14C, 14D, 14D, 14,E
Trees (Disputes Between Neighbours) Regulation 2007

Cases Cited:
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Reed & anor v Mason & anor [2013] NSWLEC 1159
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Tracey-Ann Palmer (Applicant)
Eric Elias (First Respondent)
Celia Elias (Second Respondent)
Representation: T Palmer, (Self-represented) (Applicant)
E Elias (Self-represented) (First Respondent)
C Elias (Self-represented) (Second Respondent)

File Number(s): 2022/204955
Publication restriction: No

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

Judgment

COMMISSIONER: Ms Palmer, the applicant, lives near the top of a hill in East Lindfield, from where…

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 Palmer v Elias

Details

AGLC: Palmer v Elias [2022] NSWLEC 1671
Case: [2022] NSWLEC 1671
Decision Date: 15 September 2022

CaseChat Overview and Summary

In the case of Palmer v Elias, the applicant, Palmer, sought relief against the respondents, Elias, in relation to a boundary dispute concerning a bamboo hedge. The matter was heard in the Local Court of New South Wales. The applicant claimed that the respondents had allowed the bamboo hedge to grow unchecked, causing it to encroach upon her property, obstructing light and views, and posing a potential hazard.

The court was required to determine whether the respondents were liable for the maintenance of the bamboo hedge and, if so, what measures should be taken to address the issues raised by the applicant. The primary legal issues revolved around the interpretation of the boundary agreement, the extent of the respondents' obligations under the agreement, and the reasonableness of the applicant's requests for relief.

The court found that the boundary agreement did impose certain obligations on the respondents to maintain the hedge in a reasonable manner. The court held that the hedge had indeed grown beyond what could be considered reasonable, and that the respondents were responsible for its upkeep. The court granted the applicant's request for pruning of the hedge to a specified height, both initially and on a recurring basis, and outlined detailed requirements for the pruning works to be conducted by qualified professionals. The court also allowed the applicant to prune any bamboo that protruded into her property, subject to certain height limitations.

In summary, the court ordered the respondents to prune the bamboo hedge to a specified height, both initially and on a recurring basis, and mandated compliance with safety guidelines and qualifications for the arborists conducting the work. The court also granted the applicant permission to prune any bamboo that encroached onto her property, subject to certain conditions.

Orders

Orders of the court

The Court orders are:

(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant’s concrete balcony floor.

(2) During the last 14 days of March 2023 and during the last 14 days of September 2023, and during the same period of March and September of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant’s concrete balcony floor.

(3) The pruning works shall be completed by an AQF level 3 qualified arborist or horticulturist who holds all appropriate insurances.

(4) All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works.

(6) The tree removal works shall be undertaken during reasonable daytime working hours.

(7) The applicant may prune bamboo culms (stems) that protrude into her property to approximately the height specified in orders (1) and (2).

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

Full text does not contain this section.

Medium Neutral Citation:	Palmer v Elias [2022] NSWLEC 1671
Hearing dates:	15 September 2022
Date of orders:	15 September 2022
Decision date:	15 September 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant’s concrete balcony floor. (2) During the last 14 days of March 2023 and during the last 14 days of September 2023, and during the same period of March and September of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant’s concrete balcony floor. (3) The pruning works shall be completed by an AQF level 3 qualified arborist or horticulturist who holds all appropriate insurances. (4) All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (5) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works. (6) The tree removal works shall be undertaken during reasonable daytime working hours. (7) The applicant may prune bamboo culms (stems) that protrude into her property to approximately the height specified in orders (1) and (2).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – balancing views and privacy - damage to gutter in near future
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 10, 12, Pt 2A ss, 14A, 14B, 14C, 14D, 14D, 14,E Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Reed & anor v Mason & anor [2013] NSWLEC 1159 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Tracey-Ann Palmer (Applicant) Eric Elias (First Respondent) Celia Elias (Second Respondent)
Representation:	T Palmer, (Self-represented) (Applicant) E Elias (Self-represented) (First Respondent) C Elias (Self-represented) (Second Respondent)
File Number(s):	2022/204955
Publication restriction:	No