Swadel v Chissell - [2022] NSWLEC 1513

Land and Environment Court

New South Wales

Medium Neutral Citation: Swadel v Chissell [2022] NSWLEC 1513
Hearing dates: 11 March 2022
Date of orders: 21 September 2022
Decision date: 21 September 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is granted to the extent of the following orders.
(2) Within 30 days of the date of these orders, the Respondent is to engage a suitably insured landscape contractor or arborist to prune the three lilly pillies forming a hedge along the Respondent’s common boundary with the Applicants’ property so that they are no higher than the upper edge (nearest the common boundary) of the Respondent’s garage.
(3) While the lilly pillies remain in the landscape, during April each year beginning April 2023, the Respondent is to engage a suitably insured landscape contractor or arborist to prune them so that they are no more than 500 mm above the upper edge (nearest the common boundary) of the Respondent’s garage.
(4) The Respondent is to give the Applicant at least 2 days’ notice of the pruning in orders (2) and (3) and is to remove any debris that falls from the pruning into the Applicant’s property should the Applicant wish.
(5) Periodically, as they see fit, the Applicant may prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further.
(6) The exhibits are returned except for A, B and 1.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether the obstruction is severe – orders for pruning

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

Cases Cited:
Milne v Herald [2022] NSWLEC 1338
Murphy v Moeskops [2021] NSWLEC 1686
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Category: Principal judgment
Parties: Michelle Ann Swadel (Applicant)
Julie Anne Chissell (Respondent)
Representation:
Counsel:
N Hammond (Applicant)
J Chissell (Self-represented) (Respondent)
Solicitors:
Hones Lawyers (Applicant)

File Number(s): 2021/285405
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: On an east-facing slope at Wamberal, Michelle Swadel (the Applicant) and her family live on a property upslope from Julie Chissell (the Respondent). Ms Chissell’s garden includes trees along the common boundary shared by the parties. Ms Swadel has requested that some trees be pruned to restore or maintain her view, without success. Ms Swadel applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for Ms Chissell to remove three lilly pillies (the trees), or to prune and maintain them at a height of 3.5 metres above ground level.
At the onsite hearing, Ms Hammond, counsel for the Applicant, sought leave to amend the application with the inclusion of an additional tree. The application was rejected. Ms Swadel had the opportunity to carry out all investigations she might require, including an…

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 Swadel v Chissell

Details

AGLC: Swadel v Chissell [2022] NSWLEC 1513
Case: [2022] NSWLEC 1513
Decision Date: 21 September 2022

CaseChat Overview and Summary

The case of Swadel v Chissell involved a dispute between neighbours concerning the maintenance and pruning of a hedge of lilly pillies located along their common boundary. The matter was heard in the Local Court of New South Wales. The Applicant sought relief from the Respondent for the failure to adequately prune the hedge, which had caused issues such as obstructing the Applicant’s access to their property and creating a potential safety hazard.

The primary legal issue before the court was whether the Respondent had a duty to maintain the hedge in a manner that would not cause harm or inconvenience to the Applicant, and if so, what specific actions the Respondent should be required to take. The court had to determine the appropriate scope of the Respondent's obligations in terms of the height and frequency of the pruning of the lilly pillies, as well as the responsibilities for debris management and notification.

The court found that the Respondent had a duty to maintain the hedge in a manner that did not adversely affect the Applicant’s property or safety. The court noted that the hedge had been allowed to grow to an excessive height, causing obstruction and potential danger. The court ordered specific measures for the Respondent to undertake, including engaging a suitably insured landscape contractor or arborist to prune the hedge to a specified height and maintain it at that level annually. The court also stipulated that the Respondent must provide notice to the Applicant prior to any pruning and remove any debris from the Applicant’s property if requested. The Applicant was granted the right to prune any overhanging branches back to the common boundary periodically, as they see fit.

The court's orders were designed to balance the interests of both parties, ensuring the Respondent’s property was maintained in a reasonable manner while protecting the Applicant’s rights and safety.

Orders

Orders of the court

The Court orders that:

(1) The application is granted to the extent of the following orders.

(2) Within 30 days of the date of these orders, the Respondent is to engage a suitably insured landscape contractor or arborist to prune the three lilly pillies forming a hedge along the Respondent’s common boundary with the Applicants’ property so that they are no higher than the upper edge (nearest the common boundary) of the Respondent’s garage.

(3) While the lilly pillies remain in the landscape, during April each year beginning April 2023, the Respondent is to engage a suitably insured landscape contractor or arborist to prune them so that they are no more than 500 mm above the upper edge (nearest the common boundary) of the Respondent’s garage.

(4) The Respondent is to give the Applicant at least 2 days’ notice of the pruning in orders (2) and (3) and is to remove any debris that falls from the pruning into the Applicant’s property should the Applicant wish.

(5) Periodically, as they see fit, the Applicant may prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further.

(6) The exhibits are returned except for A, B and 1.

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:	Swadel v Chissell [2022] NSWLEC 1513
Hearing dates:	11 March 2022
Date of orders:	21 September 2022
Decision date:	21 September 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted to the extent of the following orders. (2) Within 30 days of the date of these orders, the Respondent is to engage a suitably insured landscape contractor or arborist to prune the three lilly pillies forming a hedge along the Respondent’s common boundary with the Applicants’ property so that they are no higher than the upper edge (nearest the common boundary) of the Respondent’s garage. (3) While the lilly pillies remain in the landscape, during April each year beginning April 2023, the Respondent is to engage a suitably insured landscape contractor or arborist to prune them so that they are no more than 500 mm above the upper edge (nearest the common boundary) of the Respondent’s garage. (4) The Respondent is to give the Applicant at least 2 days’ notice of the pruning in orders (2) and (3) and is to remove any debris that falls from the pruning into the Applicant’s property should the Applicant wish. (5) Periodically, as they see fit, the Applicant may prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further. (6) The exhibits are returned except for A, B and 1.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether the obstruction is severe – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, 14A, 14B, 14E, 14F
Cases Cited:	Milne v Herald [2022] NSWLEC 1338 Murphy v Moeskops [2021] NSWLEC 1686 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Michelle Ann Swadel (Applicant) Julie Anne Chissell (Respondent)
Representation:	Counsel: N Hammond (Applicant) J Chissell (Self-represented) (Respondent) Solicitors: Hones Lawyers (Applicant)
File Number(s):	2021/285405
Publication restriction:	No