Shagrin v O'Neil - [2010] NSWLEC 1368

Land and Environment Court

of New South Wales

CITATION: Shagrin & Anor v O’Neil & Anor [2010] NSWLEC 1368

PARTIES:
APPLICANTS
A & L Shagrin
RESPONDENTS
J & A O’Neil

FILE NUMBER(S): 20624 of 2010

CORAM: Moore SC - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; interruption to views

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakidis[2007] NSWLEC 292
Tenacity Consulting v Waringah [2004] NSWLEC 140

DATES OF HEARING: 8 December 2010

EX TEMPORE JUDGMENT DATE: 8 December 2010

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

8 December 2010

20624 of 2010 A & L Shagrin v J & A O’Neil
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: In these proceedings, Mr and Mrs Shagrin have made applications under both Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act. The applications between them relate to a number of Banksia trees planted on the side boundary and in the front setback of the property to the south owned by Mr and Mrs O’Neil. It is necessary for us to consider each of the applications under the two Parts of the Act separately as different jurisdictional tests apply with respect to them.

2 Before commencing that analysis, we also note that, during the course of the proceedings, Mr and Mrs Shagrin made an application for leave to amend their application under Part 2 of the Act to incorporate an application concerning a number of tree ferns located along the side boundary shared between the two properties. The basis of that application was s 10(2)(b) of the Act in that it was said that those trees were likely to cause injury to any person arising from the irritation that Mrs Shagrin says she suffers in her eyes from pollen or other material that is deposited by those tree ferns, and also pursuant to s 10(2)(a) concerning what they say is a risk of damage to their property. We declined leave to amend but make the specific observation that, because the tree ferns were not the subject of the original application, this ruling does not preclude some separate application being made with respect to those plants. We did observe during the course of rejecting the application, that we were satisfied that tree ferns under the circumstances satisfied the definition of a tree, being a plant resembling a tree in form and size, and were thus within the scope of the legislation.

3 We turn first to the question of the application under Part 2 of the Act.

4 The application under Part 2 relates to a number of matters. The first is the small retaining wall at the front of the two properties located on the southern side of the driveway leading to the Shagrins' garage which is located close to 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 Shagrin v O'Neil

Details

AGLC: Shagrin v O'Neil [2010] NSWLEC 1368
Case: [2010] NSWLEC 1368
Decision Date: 8 December 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case brought by A and L Shagrin against J and A O’Neil concerning the damage to property and obstruction of views caused by trees on the O’Neils’ property. The Shagrins sought orders under the Trees (Disputes Between Neighbours) Act 2006, alleging that trees on the O’Neils’ property had caused damage to their property and obstructed their views. The O’Neils contested the claims, and the court had to determine whether the trees caused the alleged damage and obstruction and if the Shagrins were entitled to any relief under the Act.

The court examined the Shagrins’ claims under Part 2 and Part 2A of the Act separately. The court found that the Shagrins' retaining wall and garage were not within the jurisdiction of the Act, and the damage to their garage was due to a poor repair job and blocked gutters, not the trees. The court declined to make any orders for tree removal under Part 2, following the principle in Barker v Kyriakidis that parties should maintain their property to avoid damage caused by tree debris.

Under Part 2A, the court found that the Banksia trees on the O’Neils’ property formed hedges that obstructed the Shagrins’ view of the Sydney Opera House from their lounge room. The court determined that the obstruction constituted a severe impact on the view and ordered the O’Neils to remove the northernmost tree in the front hedge by 1 February 2011. The court also ruled that the O’Neils should bear the cost of tree removal, as they were aware of the obstruction issue when they planted the tree.

The court dismissed the Shagrins’ claim about the interruption of their sunset view, finding it did not significantly increase the severity of the obstruction. The final orders required the O’Neils to remove the specified tree, with no replacement, and to bear the cost of the removal, which should be carried out by a qualified arborist.

The judgment reflects the court’s balanced approach to neighbour disputes, weighing the Shagrins’ right to unobstructed views against the O’Neils’ right to maintain trees on their property, while also considering the principles of property maintenance and responsibility.

Orders