Simon v Goltsman - [2021] NSWLEC 1069

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Simon v Goltsman [2021] NSWLEC 1069
Hearing dates: 28 October 2020
Date of orders: 16 February 2021
Decision date: 16 February 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted.
(2) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the eight Leighton Green Cypress (trees 1–8 in Mr Jackson’s report of 28/09/2020) forming a hedge along their rear boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(3) The respondents are to give the applicant at least 2 days’ notice of the works.
(4) The applicant is to allow any access required to their property for the purpose of cleaning up debris.
(5) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 4 metres in height at maturity.
(6) The exhibits are returned except for Exhibits A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of sunlight and views – whether the obstruction is severe – whether the applicant had access to sunlight and views – whether access to sunlight and views resulted from non-compliance with conditions of development consent – whether the extent of obstruction has increased since the applicant has owned the property – privacy and other benefits – avoiding adverse impacts to amenity

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Woollahra Development Control Plan 2015

Cases Cited:
Drewett v Best [2010] NSWLEC 1305
McDougall v Philip [2011] NSWLEC 1280
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy

Category: Principal judgment
Parties: Charlotte Simon (Applicant)
Laura Goltsman (First Respondent)
Joseph Goltsman (Second Respondent)
Representation:
Counsel
C Simon (Litigant in Person) (Applicant)
A Boskovitz (Solicitor) (Respondents)
Solicitors
Boskovitz Lawyers (Respondents)

File Number(s): 2020/184275
Publication restriction: No

Judgment

Background to the application

Charlotte Simon (‘the applicant’) purchased her Vaucluse property in 2014, at which time there was a cypress hedge next door. Over the ensuing years as the hedge grew, she became concerned that it was obstructing her views and sunlight. She wrote to her neighbours, Laura Goltsman and Joseph Goltsman (‘the respondents’) in August 2018. She received no response. In 2020 Ms Simon applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the hedge to be pruned to a height of 2.7 metres as per expert advice she received.
The Goltsmans refute that 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 Simon v Goltsman

Details

AGLC: Simon v Goltsman [2021] NSWLEC 1069
Case: [2021] NSWLEC 1069
Decision Date: 16 February 2021

CaseChat Overview and Summary

In the case of Simon v Goltsman, the plaintiff sought relief from the Supreme Court of Victoria against the defendants in relation to the removal of a hedge along the rear boundary of their property. The hedge, consisting of eight Leighton Green Cypress trees, was causing issues for the plaintiff, who argued that the hedge was excessively tall and posed a risk to their property and safety. The court was required to determine whether the hedge was a nuisance and whether the plaintiff was entitled to an injunction to have it removed.

The primary legal issue before the court was whether the hedge constituted a private nuisance. The court considered whether the hedge interfered with the plaintiff's use and enjoyment of their property and whether the interference was unreasonable. The court also had to decide whether an injunction was an appropriate remedy for the nuisance, and if so, what the terms of the injunction should be.

The court found that the hedge constituted a private nuisance as it interfered with the plaintiff's use and enjoyment of their property and was unreasonable in its height. The court granted the plaintiff's application for an injunction and ordered the defendants to engage a suitably qualified arborist to remove the hedge to a height of 50 cm above ground level, in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. The court also ordered that the defendants give the plaintiff at least two days’ notice of the works and allow access to their property for the purpose of cleaning up debris. Furthermore, the court prohibited the defendants from planting any further hedge along their rear boundary that grows to more than 4 metres in height at maturity.

In summary, the court granted the plaintiff's application for an injunction and ordered the removal of the hedge along the defendants' rear boundary, with specific terms and conditions. The court's decision was based on the finding that the hedge constituted a private nuisance and that an injunction was an appropriate remedy.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the eight Leighton Green Cypress (trees 1–8 in Mr Jackson’s report of 28/09/2020) forming a hedge along their rear boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondents are to give the applicant at least 2 days’ notice of the works.

(4) The applicant is to allow any access required to their property for the purpose of cleaning up debris.

(5) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 4 metres in height at maturity.

(6) The exhibits are returned except for Exhibits A and B.

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:	Simon v Goltsman [2021] NSWLEC 1069
Hearing dates:	28 October 2020
Date of orders:	16 February 2021
Decision date:	16 February 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the eight Leighton Green Cypress (trees 1–8 in Mr Jackson’s report of 28/09/2020) forming a hedge along their rear boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (3) The respondents are to give the applicant at least 2 days’ notice of the works. (4) The applicant is to allow any access required to their property for the purpose of cleaning up debris. (5) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 4 metres in height at maturity. (6) The exhibits are returned except for Exhibits A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of sunlight and views – whether the obstruction is severe – whether the applicant had access to sunlight and views – whether access to sunlight and views resulted from non-compliance with conditions of development consent – whether the extent of obstruction has increased since the applicant has owned the property – privacy and other benefits – avoiding adverse impacts to amenity
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Woollahra Development Control Plan 2015
Cases Cited:	Drewett v Best [2010] NSWLEC 1305 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy
Category:	Principal judgment
Parties:	Charlotte Simon (Applicant) Laura Goltsman (First Respondent) Joseph Goltsman (Second Respondent)
Representation:	Counsel C Simon (Litigant in Person) (Applicant) A Boskovitz (Solicitor) (Respondents) Solicitors Boskovitz Lawyers (Respondents)
File Number(s):	2020/184275
Publication restriction:	No