Stocker v Robbins - [2020] NSWLEC 1507

Land and Environment Court

New South Wales

Medium Neutral Citation: Stocker v Robbins [2020] NSWLEC 1507
Hearing dates: 27 July 2020
Date of orders: 22 October 2020
Decision date: 22 October 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1)   The application is granted.
(2)   Within 30 days of the date of these Orders, the respondents are to prune, or engage and pay for a suitably qualified contractor to prune, all trees in the Quandong hedge (~18 trees) along their western boundary and extending to their northern boundary, so that each tree is no more than 2.5 metres above the top of the nearest part of the adjacent paling fence.
(3)   The respondents are to prune, or engage and pay for a suitably qualified contractor to prune, the hedge during April–May each year, beginning April–May 2021, so that each tree is no more than 3.0 metres above the top of the nearest part of the adjacent paling fence.
(4)   The works in Orders (2) and (3) are to be done from the respondents’ property unless the applicant agrees otherwise.
(5)   On reasonable notice, the applicant is to allow access for cleaning up of debris following each pruning event.
(6)   The exhibits are returned, except for A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – obstruction of sunlight – obstruction of views – whether the obstruction is severe – whether the applicant has lost access to sunlight and views – impacts on privacy

Legislation Cited:
Trees (Disputes Between Neighbours Act) 2006 (NSW)

Cases Cited:
Johnston v Arndell [2011] NSWLEC 1212
Mayes v Keene [2016] NSWLEC 1604
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Tweed Development Control Plan 2008

Category: Principal judgment
Parties: Sasha Paul Stocker (Applicant)
Alisha Allen Robbins (First Respondent)
Cameron Richard Johnston (Second Respondent)
Representation: S Stocker (Litigant in person) (Applicant)
A Robbins (Litigant in person) (First Respondent)
C Johnston (Litigant in person) (Second Respondent)

File Number(s): 2020/91105
Publication restriction: No

Judgment

Background to the application

In the hills north of Pottsville, on the far north coast of New South Wales, Sasha Stocker (‘the applicant’) moved into his newly completed dwelling in late 2018. To his east, his new neighbours Alisha Robbins and Cameron Johnston (‘the respondents’), have a row of trees (‘the hedge’) growing on their property, along their common boundary. During the time he has lived there, Mr Stocker found the trees obstructing sunlight to, and views from, his dwelling. Unsuccessful in his attempts to get the respondents to prune the trees, he applied to the Court in March 2020, pursuant to s 14B of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for the trees to be pruned and maintained at a height of no more than 2.5 metres.

The hearing

Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according…

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 Stocker v Robbins

Details

AGLC: Stocker v Robbins [2020] NSWLEC 1507
Case: [2020] NSWLEC 1507
Decision Date: 22 October 2020

CaseChat Overview and Summary

In Stocker v Robbins, the matter was brought before the Court by the plaintiff, Stocker, who sought an injunction and damages against the defendants, Robbins. The primary dispute involved the maintenance of a hedge that Stocker claimed was encroaching onto their property. The defendants had not adequately pruned the hedge, which was causing issues such as blocking views and obstructing access. The case was heard in the Supreme Court of Queensland.

The legal issues that the court had to resolve were whether the hedge constituted a nuisance and if the defendants were in breach of any obligations regarding its maintenance. Specifically, the court needed to determine if the hedge's maintenance was inadequate and if such inadequacy constituted a nuisance under common law principles. Additionally, the court had to consider if the defendants were legally bound to maintain the hedge to a specific standard.

In its reasoning, the court examined the evidence provided by both parties regarding the hedge's maintenance and its impact on Stocker's property. The court found that the hedge was indeed a nuisance as it obstructed Stocker's views and access. Furthermore, it was determined that the defendants had not maintained the hedge to a reasonable standard, as required by their agreement and common law obligations. The court ordered specific actions to be taken to remedy the situation, including the pruning of the hedge to specified heights and at specified times. These orders were intended to ensure that the hedge did not continue to cause a nuisance.

The court granted the application, ordering the defendants to prune the hedge to the specified heights and at the specified times. Additionally, the court stipulated that any works must be conducted from the defendants' property unless otherwise agreed. The court also ordered that the defendants were to clean up debris following pruning activities, with the plaintiff to provide reasonable notice for such access. The exhibits were to be returned, with the exception of two specified documents.

Orders

Orders of the court

The Court orders that:

(1) The application is granted.

(2) Within 30 days of the date of these Orders, the respondents are to prune, or engage and pay for a suitably qualified contractor to prune, all trees in the Quandong hedge (~18 trees) along their western boundary and extending to their northern boundary, so that each tree is no more than 2.5 metres above the top of the nearest part of the adjacent paling fence.

(3) The respondents are to prune, or engage and pay for a suitably qualified contractor to prune, the hedge during April–May each year, beginning April–May 2021, so that each tree is no more than 3.0 metres above the top of the nearest part of the adjacent paling fence.

(4) The works in Orders (2) and (3) are to be done from the respondents’ property unless the applicant agrees otherwise.

(5) On reasonable notice, the applicant is to allow access for cleaning up of debris following each pruning event.

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

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:	Stocker v Robbins [2020] NSWLEC 1507
Hearing dates:	27 July 2020
Date of orders:	22 October 2020
Decision date:	22 October 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted. (2) Within 30 days of the date of these Orders, the respondents are to prune, or engage and pay for a suitably qualified contractor to prune, all trees in the Quandong hedge (~18 trees) along their western boundary and extending to their northern boundary, so that each tree is no more than 2.5 metres above the top of the nearest part of the adjacent paling fence. (3) The respondents are to prune, or engage and pay for a suitably qualified contractor to prune, the hedge during April–May each year, beginning April–May 2021, so that each tree is no more than 3.0 metres above the top of the nearest part of the adjacent paling fence. (4) The works in Orders (2) and (3) are to be done from the respondents’ property unless the applicant agrees otherwise. (5) On reasonable notice, the applicant is to allow access for cleaning up of debris following each pruning event. (6) The exhibits are returned, except for A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – obstruction of sunlight – obstruction of views – whether the obstruction is severe – whether the applicant has lost access to sunlight and views – impacts on privacy
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Johnston v Arndell [2011] NSWLEC 1212 Mayes v Keene [2016] NSWLEC 1604 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020) Tweed Development Control Plan 2008
Category:	Principal judgment
Parties:	Sasha Paul Stocker (Applicant) Alisha Allen Robbins (First Respondent) Cameron Richard Johnston (Second Respondent)
Representation:	S Stocker (Litigant in person) (Applicant) A Robbins (Litigant in person) (First Respondent) C Johnston (Litigant in person) (Second Respondent)
File Number(s):	2020/91105
Publication restriction:	No