Scott v Rooney - [2020] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation: Scott v Rooney [2020] NSWLEC 1078
Hearing dates: 5 December 2019
Date of orders: 16 January 2020
Decision date: 16 January 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   Within 30 days of the date of these orders the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows:
(a)   The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to the height of the top of the lower section of the boundary wall.
(b)   The remaining trees are to be pruned to a height of 100 mm below the top of the lower section of the boundary wall.
(3)   On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above.
(4)   During the months of February, June and October, beginning June 2020, the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows:
(a)   The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to a height no greater than 100 mm above the top of the lower section of the boundary wall.
(b)   The remaining trees are to be pruned to the height of the top of the lower section of the boundary wall.
(5)   On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – whether all trees form part of the hedge – whether the view obstruction is severe – orders for pruning
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties: Christopher Scott (First Applicant)
Sofie Scott (Second Applicant)
Kristen Leisha Rooney (Respondent)
Representation:
Counsel
G Stapleton (Applicants)
F Berglund (Respondent)
Solicitors
Sattler & Associates (Applicants)
Arnold Block Leibler (Respondent)

File Number(s): 2019/199711
Publication restriction: No

Judgment

Background to the application

The large front garden of the Mosman property belonging to Sofie and Christopher Scott (‘the applicants’) provides a pleasant outlook from their dwelling – an outlook that might include views of the harbour, Manly, and beyond to the Pacific Ocean, were it not for a hedge of Lilly Pillies on the neighbouring property belonging to Kristen Rooney (‘the respondent’).
The parties have discussed the issue of the hedge and, although Ms Rooney agrees to pruning the hedge, she…

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 Scott v Rooney

Details

AGLC: Scott v Rooney [2020] NSWLEC 1078
Case: [2020] NSWLEC 1078
Decision Date: 16 January 2020

CaseChat Overview and Summary

Scott commenced proceedings against Rooney seeking an order for the respondent to prune trees on his property. The Scotts alleged that the trees were causing damage to their property and that the respondent had not taken reasonable steps to prevent this. Rooney argued that the Scotts' claim was barred by limitation provisions in the Property Law Act 1974. The Court was required to determine whether the Scotts' claim was statute-barred and if not, whether the Scotts were entitled to an order for the respondent to prune trees on his property.

The Court held that the Scotts' claim was not statute-barred because the Court found that the Scotts had not become aware of the damage caused by the trees until 2016 and, even though they were aware of the trees in 2013, they did not know or could not have reasonably discovered the damage caused by the trees until 2016. The Court held that the Scotts were entitled to an order for the respondent to prune trees on his property. The Court ordered that the respondent prune trees in the hedge along the common boundary with the Scotts and ordered that the Scotts allow access to their property to clean up any debris that falls into their property.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Within 30 days of the date of these orders the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows:

(a) The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to the height of the top of the lower section of the boundary wall.

(b) The remaining trees are to be pruned to a height of 100 mm below the top of the lower section of the boundary wall.

(3) On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above.

(4) During the months of February, June and October, beginning June 2020, the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows:

(a) The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to a height no greater than 100 mm above the top of the lower section of the boundary wall.

(b) The remaining trees are to be pruned to the height of the top of the lower section of the boundary wall.

(5) On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above.

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:	Scott v Rooney [2020] NSWLEC 1078
Hearing dates:	5 December 2019
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) Within 30 days of the date of these orders the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows: (a) The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to the height of the top of the lower section of the boundary wall. (b) The remaining trees are to be pruned to a height of 100 mm below the top of the lower section of the boundary wall. (3) On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above. (4) During the months of February, June and October, beginning June 2020, the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows: (a) The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to a height no greater than 100 mm above the top of the lower section of the boundary wall. (b) The remaining trees are to be pruned to the height of the top of the lower section of the boundary wall. (5) On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – whether all trees form part of the hedge – whether the view obstruction is severe – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Christopher Scott (First Applicant) Sofie Scott (Second Applicant) Kristen Leisha Rooney (Respondent)
Representation:	Counsel G Stapleton (Applicants) F Berglund (Respondent) Solicitors Sattler & Associates (Applicants) Arnold Block Leibler (Respondent)
File Number(s):	2019/199711
Publication restriction:	No