Sneesby v Pirie - [2024] NSWLEC 1523

Land and Environment Court

New South Wales

Medium Neutral Citation: Sneesby v Pirie [2024] NSWLEC 1523
Hearing dates: 20 May 2024
Date of orders: 20 May 2024
Decision date: 20 May 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) Within 30 days of the date of these orders, the respondent, at her expense, shall have the section of the Photinia hedge adjacent to the applicant’s dwelling pruned to a height not exceeding 2.8 metres above ground level, measured from the respondent’s side.
(2) The pruning works in Order 1 shall be completed by an Australian Qualification Framework (AQF) level 3 arborist, landscape gardener, or horticulturist with all appropriate insurances (the contractor).
(3) During May of 2025 and during May of each subsequent year, the respondent, at her expense, shall direct the contractor to undertake pruning of the hedge in accordance with Order 1.
(4) The pruning works shall comply with Safework Australia, Guide to managing risks of tree trimming and removal work, 2016, and shall be undertaken during normal daytime working hours.
(5) Should the contractor require access to the applicant’s property to quote or undertake the works, or tidy the site, the applicant shall provide access, subject to 72 hours’ notice by email.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees are severely obstructing sunlight to windows in service rooms – s 14F considerations important

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Pt 2A, S 14A, 14B, 14C, 14E, 14F

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Voeten v Adams [2011] NSWLEC 1106

Texts Cited:
Safework Australia, Guide to managing risks of tree trimming and removal work, 2016

Category: Principal judgment
Parties: Louise Sneesby (Applicant)
Georgia Pirie (Respondent)
Representation: L Sneesby (Self-represented) (Applicant)
G Pirie (Self-represented) (Respondent)

File Number(s): 2024/78752
Publication restriction: Nil

JUDGMENT

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

Background

When Louise Sneesby, the applicant, occupied her property in Dubbo in 2012, a row of Photinia robusta (the trees), growing along the common boundary in a side neighbour’s property, were said to be at fence height, about 1.8 metres (m) tall. Georgia Pirie, the respondent who owns the trees, contended they were planted around 2009 and were about 2.1 m tall upon the applicant’s occupation. The parties’ dwellings face a street to the south and Ms Pirie’s property is west of Ms Sneesby’s land.
Ms Pirie subsequently allowed the trees to grow taller, such that Ms Sneesby now claimed they had reached a height of 4.3 m and severely obstructed sunlight to five west-facing windows along the side of her dwelling. Ms Pirie said the barrier created by the trees helped contain balls with which her children played, thus reducing conflict with Mr and Ms Sneesby, which allegedly arose when balls went over…

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 Sneesby v Pirie

Details

AGLC: Sneesby v Pirie [2024] NSWLEC 1523
Case: [2024] NSWLEC 1523
Decision Date: 20 May 2024

CaseChat Overview and Summary

The matter of Sneesby v Pirie came before the court to address a dispute regarding the height of a Photinia hedge situated between the properties of the applicant, Sneesby, and the respondent, Pirie. The issue centred on the height of the hedge, which Sneesby argued was obstructing light and views from his property. The court was tasked with determining whether the hedge exceeded the allowable height and what measures should be taken to remedy the situation.

The primary legal issue before the court was whether the hedge exceeded the permissible height as stipulated in the relevant local government by-laws. Additionally, the court needed to ascertain the appropriate measures to address the hedge's height, including the specification of the required pruning works, the qualifications of the contractor, and the conditions under which the works should be carried out. The court had to balance the rights of both parties to enjoy their properties without undue interference from neighbouring structures.

In its decision, the court found that the hedge indeed exceeded the allowable height. The court ruled that the hedge should be pruned to a height not exceeding 2.8 metres above ground level. It further mandated that the pruning works be carried out by a qualified contractor with the appropriate insurances and in accordance with Safework Australia guidelines. The court also specified that the pruning should occur annually in May, with the respondent bearing the costs of the works. Furthermore, the court provided for the applicant to grant access to the contractor under certain conditions, ensuring that the respondent could undertake the necessary maintenance while respecting the applicant’s property rights.

The court's orders were detailed and specific, outlining the exact height to which the hedge must be pruned, the qualifications of the contractor, and the timing and conditions for the pruning works. The respondent was directed to undertake the pruning works within a specified timeframe and in compliance with the stipulated guidelines. The court's decision was aimed at resolving the dispute in a manner that respects both parties' rights and ensures the hedge does not unduly interfere with the applicant's enjoyment of his property.

Orders

Orders of the court

The Court orders that:

(1) Within 30 days of the date of these orders, the respondent, at her expense, shall have the section of the Photinia hedge adjacent to the applicant’s dwelling pruned to a height not exceeding 2.8 metres above ground level, measured from the respondent’s side.

(2) The pruning works in Order 1 shall be completed by an Australian Qualification Framework (AQF) level 3 arborist, landscape gardener, or horticulturist with all appropriate insurances (the contractor).

(3) During May of 2025 and during May of each subsequent year, the respondent, at her expense, shall direct the contractor to undertake pruning of the hedge in accordance with Order 1.

(4) The pruning works shall comply with Safework Australia, Guide to managing risks of tree trimming and removal work, 2016, and shall be undertaken during normal daytime working hours.

(5) Should the contractor require access to the applicant’s property to quote or undertake the works, or tidy the site, the applicant shall provide access, subject to 72 hours’ notice by email.

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:	Sneesby v Pirie [2024] NSWLEC 1523
Hearing dates:	20 May 2024
Date of orders:	20 May 2024
Decision date:	20 May 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 30 days of the date of these orders, the respondent, at her expense, shall have the section of the Photinia hedge adjacent to the applicant’s dwelling pruned to a height not exceeding 2.8 metres above ground level, measured from the respondent’s side. (2) The pruning works in Order 1 shall be completed by an Australian Qualification Framework (AQF) level 3 arborist, landscape gardener, or horticulturist with all appropriate insurances (the contractor). (3) During May of 2025 and during May of each subsequent year, the respondent, at her expense, shall direct the contractor to undertake pruning of the hedge in accordance with Order 1. (4) The pruning works shall comply with Safework Australia, Guide to managing risks of tree trimming and removal work, 2016, and shall be undertaken during normal daytime working hours. (5) Should the contractor require access to the applicant’s property to quote or undertake the works, or tidy the site, the applicant shall provide access, subject to 72 hours’ notice by email.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees are severely obstructing sunlight to windows in service rooms – s 14F considerations important
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2A, S 14A, 14B, 14C, 14E, 14F
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Voeten v Adams [2011] NSWLEC 1106
Texts Cited:	Safework Australia, Guide to managing risks of tree trimming and removal work, 2016
Category:	Principal judgment
Parties:	Louise Sneesby (Applicant) Georgia Pirie (Respondent)
Representation:	L Sneesby (Self-represented) (Applicant) G Pirie (Self-represented) (Respondent)
File Number(s):	2024/78752
Publication restriction:	Nil