The Owners Strata Plan No. 3123 v Moore - [2023] NSWLEC 1550

Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan No. 3123 v Moore [2023] NSWLEC 1550
Hearing dates: 24 August 2023
Date of orders: 24 August 2023
Decision date: 24 August 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The Pt 2 application is granted.
(2)   Within 60 days of the date of these orders, the first and second respondents are to restore the vertical alignment of, and make secure, the section of the applicant’s boundary fence immediately to the south of the southeast corner post of the first and second respondents’ property.
(3)   The applicant is to provide any access required for the first and second respondents to complete the works in order (2) during reasonable hours, on 48 hours’ notice from the first and second respondents.
(4) The Pt 2A application is granted to the extent of the following orders.
(5)   Within 60 days of the date of these orders, the first and second respondents are to prune, or engage a contractor to prune, all trees in tree groups G2 and G3 so that they are no taller than 2.5 metres.
(6)   The applicant is to provide any access required for the first and second respondents to complete the works in order (5) during reasonable hours, on 48 hours’ notice from the first and second respondents.
(7)   The exhibits are returned, other than Exhibits A, B and C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – fence damage caused by neighbouring tree – Pt 2A application – whether the trees are planted so as to form a hedge – obstruction of sunlight and views – orders for pruning

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 10, 12, 14A, 14B, 14E, 14F
Uniform Civil Procedure Rules 2005, rule 36.17

Cases Cited:
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Wisdom v Payn [2011] NSWLEC 1012

Category: Principal judgment
Parties: The Owners – Strata Plan 3123 (Applicant)
Philip Moore (First Respondent)
Caroline Quaine (Second Respondent)
The Owners – Strata Plan 91797 (Third Respondent)
Representation:
Counsel
M Langenheim (Applicant)
P Moore (Self-represented) (First Respondent)
C Quaine (Self-represented) (Second Respondent)
P Moore, C Quaine, A Harding, L Bell (Self-represented) (Third Respondent)
Solicitors
Monti Lawyers (Applicant)

File Number(s): 2023/213166
Publication restriction: No

Judgment

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

Background

COMMISSIONER: The owners of Strata Plan No. 3123 (the applicant), a property of units in North Bondi, have applied to the Court seeking orders relating to neighbouring trees on the property of Philip Moore and Caroline Quaine (the first and second respondents).
Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the applicant seeks orders for repairs to their boundary fence, which they say was damaged by a tree on the respondents’ property. Pursuant to s 14B (Pt 2A) of the Trees Act, the applicant seeks…

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.

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Details

Case: [2023] NSWLEC 1550
Decision Date: 24 August 2023

CaseChat Overview and Summary

The Owners Strata Plan No. 3123 filed a case against Moore in the Supreme Court of New South Wales. The dispute involved the maintenance of a boundary fence and the pruning of trees, which were affecting the applicant’s property. The court was asked to decide on two specific applications: Part 2, concerning the restoration and securing of the boundary fence, and Part 2A, relating to the pruning of trees. The applicants argued that the respondents’ boundary fence was not vertically aligned and that the trees were encroaching on their property, causing inconvenience and damage.

The legal issues that the court had to determine included whether the respondents were responsible for the maintenance and repair of the boundary fence and whether they had to prune the trees to a specified height. The applicants claimed that the respondents had failed to maintain the fence in a proper condition and that the trees were affecting their property. The respondents, on the other hand, argued that they were not responsible for the fence and that the trees were not affecting the applicants’ property. The court had to decide whether the applicants’ claims were valid and whether the respondents had to take specific actions to address the issues.

The court found that the respondents were responsible for the maintenance and repair of the boundary fence and that the trees were affecting the applicants’ property. The court held that the respondents had to restore and secure the fence and prune the trees to a specified height. The court also noted that the applicants had to provide access to the respondents to complete the works. The court granted the applicants’ applications and made specific orders for the respondents to take action within a specified period. The court also ordered that the exhibits be returned, except for specific exhibits that were to remain with the court.

The court’s decision provides clarity on the responsibilities of the parties in maintaining the boundary fence and pruning the trees. The court’s orders are specific and provide a clear course of action for the respondents to take to address the issues. The decision also highlights the importance of property maintenance and the need for parties to take responsibility for their actions. The orders made by the court are enforceable and provide a legal basis for the applicants to seek enforcement if the respondents fail to comply.

Orders

Orders of the court

The Court orders:

(1) The Pt 2 application is granted.

(2) Within 60 days of the date of these orders, the first and second respondents are to restore the vertical alignment of, and make secure, the section of the applicant’s boundary fence immediately to the south of the southeast corner post of the first and second respondents’ property.

(3) The applicant is to provide any access required for the first and second respondents to complete the works in order (2) during reasonable hours, on 48 hours’ notice from the first and second respondents.

(4) The Pt 2A application is granted to the extent of the following orders.

(5) Within 60 days of the date of these orders, the first and second respondents are to prune, or engage a contractor to prune, all trees in tree groups G2 and G3 so that they are no taller than 2.5 metres.

(6) The applicant is to provide any access required for the first and second respondents to complete the works in order (5) during reasonable hours, on 48 hours’ notice from the first and second respondents.

(7) The exhibits are returned, other than Exhibits A, B and C.

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:	The Owners – Strata Plan No. 3123 v Moore [2023] NSWLEC 1550
Hearing dates:	24 August 2023
Date of orders:	24 August 2023
Decision date:	24 August 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Pt 2 application is granted. (2) Within 60 days of the date of these orders, the first and second respondents are to restore the vertical alignment of, and make secure, the section of the applicant’s boundary fence immediately to the south of the southeast corner post of the first and second respondents’ property. (3) The applicant is to provide any access required for the first and second respondents to complete the works in order (2) during reasonable hours, on 48 hours’ notice from the first and second respondents. (4) The Pt 2A application is granted to the extent of the following orders. (5) Within 60 days of the date of these orders, the first and second respondents are to prune, or engage a contractor to prune, all trees in tree groups G2 and G3 so that they are no taller than 2.5 metres. (6) The applicant is to provide any access required for the first and second respondents to complete the works in order (5) during reasonable hours, on 48 hours’ notice from the first and second respondents. (7) The exhibits are returned, other than Exhibits A, B and C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – fence damage caused by neighbouring tree – Pt 2A application – whether the trees are planted so as to form a hedge – obstruction of sunlight and views – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 10, 12, 14A, 14B, 14E, 14F Uniform Civil Procedure Rules 2005, rule 36.17
Cases Cited:	Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	The Owners – Strata Plan 3123 (Applicant) Philip Moore (First Respondent) Caroline Quaine (Second Respondent) The Owners – Strata Plan 91797 (Third Respondent)
Representation:	Counsel M Langenheim (Applicant) P Moore (Self-represented) (First Respondent) C Quaine (Self-represented) (Second Respondent) P Moore, C Quaine, A Harding, L Bell (Self-represented) (Third Respondent) Solicitors Monti Lawyers (Applicant)
File Number(s):	2023/213166
Publication restriction:	No