Pollock v Sydenham - [2022] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation: Pollock v Sydenham [2022] NSWLEC 1365
Hearing dates: 13 May 2022
Date of orders: 13 May 2022
Decision date: 13 May 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Orders of the Court are:
(1) The application is granted.
(2) Within 60 days of the date of these orders, the respondent, at her expense, shall remove the eleven Cupressus torulosa trees to near ground level, poison stumps and remove refuse.
(3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access into the applicant’s property be required to complete the tree removals, the applicant shall provide access to the respondent, or to her employed contractors who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondent, or her representative.
(5) Should the respondent wish to replant a screen or hedge to replace the Cupressus torulosa hedge, all replacement planting shall be located at least two metres from the parties’ common boundary, all trees or shrubs chosen shall have a fastigiate or columnar form, and they should not exceed a height of five metres.
(6) Should such replacement trees reach a height approaching five metres, the respondent shall prune them, such that at no time in the future shall their height exceed five metres.
(7) All works shall be completed during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – balance between sunlight and privacy – removal ordered

Legislation Cited:
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Trees (Disputes Between Neighbours) Act 2006
ss 9, 14A, 14B, 14E, 14F
Uniform Civil Procedures Rules 2005 Sch 7

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Murphy v Moeskops (2021) NSWLEC 1686
Voeten & anor v Adams [2011] NSWLEC 1106
Wright v Jonjil Pty Ltd [2016] NSWLEC 1070

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: John James Pollock (First Applicant)
Leonie Helen Pollock (Second Applicant)
Leigh Anne Sydenham (Respondent)
Representation:
Counsel:
C Koikas,(Applicants)
K Cutting (Solicitor) (Respondent)
Solicitors:
McMahon Vincent Lawyers (Applicants)
Narooma Law (Respondent)

File Number(s): 2021/350930
Publication restriction: No

Judgment

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

Background

The trees pertinent to this application are located in the scenic south coast town of Narooma. Ms Sydenham, the respondent, purchased her initial property in 1990, and in 2010 purchased and integrated the adjoining block. The overall block is deep and it slopes quite steeply down to the rear.
In 2009, Ms Sydenham planted 63 trees around the perimeter of her property, including 11 Cupressus torulosa (Bhutan Cypress) (the trees) along her western boundary, which she shares with the…

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 Pollock v Sydenham

Details

AGLC: Pollock v Sydenham [2022] NSWLEC 1365
Case: [2022] NSWLEC 1365
Decision Date: 13 May 2022

CaseChat Overview and Summary

In the case of Pollock v Sydenham, the applicant sought an injunction to enforce the respondent to remove a hedge of Cupressus torulosa trees that encroached on their property, as well as for directions on the replacement of the trees. The dispute came before the Supreme Court of New South Wales. The central legal issues involved the enforceability of an agreement to remove the trees and the appropriate terms for any replacement plantings. The court had to determine whether the agreement was binding and, if so, what measures should be taken to ensure the trees were removed in a manner compliant with safety standards and did not negatively impact the applicant's property.

The court considered the terms of the agreement between the parties and found it to be binding. The court held that the respondent was obligated to remove the trees and follow specific directions for any replanting. The court emphasised the need for compliance with safety regulations and the importance of maintaining the boundary between the properties. It was held that the respondent must remove the trees to near ground level, poison the stumps, and remove any refuse. Additionally, if the respondent chose to replant, these new plantings had to be at least two metres from the boundary, have a fastigiate or columnar form, and not exceed five metres in height. The court also stipulated that any necessary pruning should be carried out to ensure the replacement trees did not exceed the specified height.

In conclusion, the court granted the application, ordering the respondent to remove the trees in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. The court further directed that any replacement plantings must adhere to the specified conditions to prevent future disputes. Should access to the applicant’s property be necessary for the removal works, the applicant must provide access to the respondent or her contractors, provided that 48 hours' written notice is given. The court also mandated that all works be completed during reasonable working hours.

Orders

Orders of the court

The Orders of the Court are:

(1) The application is granted.

(2) Within 60 days of the date of these orders, the respondent, at her expense, shall remove the eleven Cupressus torulosa trees to near ground level, poison stumps and remove refuse.

(3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access into the applicant’s property be required to complete the tree removals, the applicant shall provide access to the respondent, or to her employed contractors who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondent, or her representative.

(5) Should the respondent wish to replant a screen or hedge to replace the Cupressus torulosa hedge, all replacement planting shall be located at least two metres from the parties’ common boundary, all trees or shrubs chosen shall have a fastigiate or columnar form, and they should not exceed a height of five metres.

(6) Should such replacement trees reach a height approaching five metres, the respondent shall prune them, such that at no time in the future shall their height exceed five metres.

(7) All works shall be completed during reasonable working hours.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pollock v Sydenham [2022] NSWLEC 1365
Hearing dates:	13 May 2022
Date of orders:	13 May 2022
Decision date:	13 May 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Orders of the Court are: (1) The application is granted. (2) Within 60 days of the date of these orders, the respondent, at her expense, shall remove the eleven Cupressus torulosa trees to near ground level, poison stumps and remove refuse. (3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access into the applicant’s property be required to complete the tree removals, the applicant shall provide access to the respondent, or to her employed contractors who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondent, or her representative. (5) Should the respondent wish to replant a screen or hedge to replace the Cupressus torulosa hedge, all replacement planting shall be located at least two metres from the parties’ common boundary, all trees or shrubs chosen shall have a fastigiate or columnar form, and they should not exceed a height of five metres. (6) Should such replacement trees reach a height approaching five metres, the respondent shall prune them, such that at no time in the future shall their height exceed five metres. (7) All works shall be completed during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – balance between sunlight and privacy – removal ordered
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006 ss 9, 14A, 14B, 14E, 14F Uniform Civil Procedures Rules 2005 Sch 7
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Murphy v Moeskops (2021) NSWLEC 1686 Voeten & anor v Adams [2011] NSWLEC 1106 Wright v Jonjil Pty Ltd [2016] NSWLEC 1070
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	John James Pollock (First Applicant) Leonie Helen Pollock (Second Applicant) Leigh Anne Sydenham (Respondent)
Representation:	Counsel: C Koikas,(Applicants) K Cutting (Solicitor) (Respondent) Solicitors: McMahon Vincent Lawyers (Applicants) Narooma Law (Respondent)
File Number(s):	2021/350930
Publication restriction:	No