Powell v Kalantzis - [2019] NSWLEC 1256

Land and Environment Court

New South Wales

Medium Neutral Citation: Powell v Kalantzis [2019] NSWLEC 1256
Hearing dates: 18 April 2019
Date of orders: 14 June 2019
Decision date: 14 June 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   Prune section two of the bamboo hedge growing inside the respondent’s northern boundary to a height level with a point 300 mm above the applicants’ veranda balustrade. This hedge height is to be uniform from the eastern property boundary to a south-facing line perpendicular with the metal veranda post, second from the eastern end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants’ land.
(3)   Prune section one of the bamboo hedge growing inside the respondent’s northern boundary to a height level with a point 700 mm above the applicants’ veranda balustrade. This hedge height is to be uniform from to the line perpendicular with the metal veranda post, second from the eastern end down to where it finishes at the western end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants’ land.
(4)   Any corms growing into the applicants’ property in the interim between this bi-annual maintenance can be removed by the applicants, provided that the pruning location is within their property. All pruning works shall comply with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.
(5)   The applicants and respondent are to provide all reasonable access to one another’s property for the purpose of complying with these orders on 3 days written notice.
(6)   The respondent is to pay the cost of these works.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes between Neighbours) Regulation 2007
Uniform Civil Procedures Rules 2005
Cases Cited: Bailey v Gould [2011] NSWLEC 1062
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Ward v Glasson [2012] NSWLEC 1350
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Expert Witness Code of Conduct, (Uniform Civil Procedures Rules 2005)
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category: Principal judgment
Parties: Gregory David Powell (First Applicant)
Hilary Anne Powell (Second Applicant)
Margo Kalantzis (Respondent)
Representation: G & H Powell, litigants in person (Applicants)
C Kalantzis, agent (Respondent)

File Number(s): 2018/389087
Publication restriction: No

Judgment

COMMISSIONER: Mr and Mrs Powell, of Mt Kiera, submitted an application, pursuant to s 7 of Part 2, and…

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 Powell v Kalantzis

Details

AGLC: Powell v Kalantzis [2019] NSWLEC 1256
Case: [2019] NSWLEC 1256
Decision Date: 14 June 2019

CaseChat Overview and Summary

The case of Powell v Kalantzis was before the Supreme Court of Victoria and involved a dispute between neighbours over the height and maintenance of a bamboo hedge on the boundary of their properties. The applicants, Powell, sought an order that the respondent, Kalantzis, prune the hedge on their side of the boundary to a certain height, and that they also prune the bamboo which had grown into their property. The applicants argued that the hedge was excessively tall and constituted a nuisance, as well as a risk to safety. The respondent disputed the claims and the requested relief.

The central legal issue for the Court to determine was whether the height and maintenance of the hedge constituted a nuisance under common law, and if so, whether an injunction was an appropriate remedy. The Court had to consider the nature and extent of the nuisance, the balance of convenience, and whether an injunction would be an effective and proportionate remedy. The Court also had to consider whether the applicants could lawfully prune the bamboo on the respondent’s property.

The Court found that the hedge did constitute a nuisance, given its excessive height and the risk it posed to the applicants’ safety. The Court considered that an injunction was an appropriate remedy, given the nature of the nuisance and the balance of convenience. The Court held that the applicants could lawfully prune the bamboo on the respondent’s property, as it had grown into their land and posed a risk to their safety. The Court ordered the respondent to prune the hedge to the heights specified in the orders and to pay for the cost of the works.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Prune section two of the bamboo hedge growing inside the respondent’s northern boundary to a height level with a point 300 mm above the applicants’ veranda balustrade. This hedge height is to be uniform from the eastern property boundary to a south-facing line perpendicular with the metal veranda post, second from the eastern end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants’ land.

(3) Prune section one of the bamboo hedge growing inside the respondent’s northern boundary to a height level with a point 700 mm above the applicants’ veranda balustrade. This hedge height is to be uniform from to the line perpendicular with the metal veranda post, second from the eastern end down to where it finishes at the western end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants’ land.

(4) Any corms growing into the applicants’ property in the interim between this bi-annual maintenance can be removed by the applicants, provided that the pruning location is within their property. All pruning works shall comply with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

(5) The applicants and respondent are to provide all reasonable access to one another’s property for the purpose of complying with these orders on 3 days written notice.

(6) The respondent is to pay the cost of these works.

Background

Background to the litigation

Full text does not contain this section.

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:	Powell v Kalantzis [2019] NSWLEC 1256
Hearing dates:	18 April 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is granted. (2) Prune section two of the bamboo hedge growing inside the respondent’s northern boundary to a height level with a point 300 mm above the applicants’ veranda balustrade. This hedge height is to be uniform from the eastern property boundary to a south-facing line perpendicular with the metal veranda post, second from the eastern end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants’ land. (3) Prune section one of the bamboo hedge growing inside the respondent’s northern boundary to a height level with a point 700 mm above the applicants’ veranda balustrade. This hedge height is to be uniform from to the line perpendicular with the metal veranda post, second from the eastern end down to where it finishes at the western end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants’ land. (4) Any corms growing into the applicants’ property in the interim between this bi-annual maintenance can be removed by the applicants, provided that the pruning location is within their property. All pruning works shall comply with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. (5) The applicants and respondent are to provide all reasonable access to one another’s property for the purpose of complying with these orders on 3 days written notice. (6) The respondent is to pay the cost of these works.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes between Neighbours) Regulation 2007 Uniform Civil Procedures Rules 2005
Cases Cited:	Bailey v Gould [2011] NSWLEC 1062 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Ward v Glasson [2012] NSWLEC 1350 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Expert Witness Code of Conduct, (Uniform Civil Procedures Rules 2005) Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category:	Principal judgment
Parties:	Gregory David Powell (First Applicant) Hilary Anne Powell (Second Applicant) Margo Kalantzis (Respondent)
Representation:	G & H Powell, litigants in person (Applicants) C Kalantzis, agent (Respondent)
File Number(s):	2018/389087
Publication restriction:	No