Wise v Hickey - [2019] NSWLEC 1524

Land and Environment Court

New South Wales

Medium Neutral Citation: Wise v Hickey [2019] NSWLEC 1524
Hearing dates: 4 October 2019
Date of orders: 06 November 2019
Decision date: 06 November 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1)   The application is granted.
(2)   The respondents are to engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to remove palms T2, T4 and T5 and the smaller stem belonging to T3.
(3)   The works must be undertaken in accordance with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016, and the Workcover NSW ‘Code of Practice for the Amenity Tree Industry’, 1998.
(4)   Any trees subsequently planting along the western boundary of the respondents’ property shall be maintained at or below a maximum height of four metres above ground level, measured at the base of each tree.
(5)   Order (2) to be completed within 45 days of the date of these orders.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedures Rules 2005
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited: Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Workcover NSW ‘Code of Practice for the Amenity Tree Industry, 1998
Category: Principal judgment
Parties: Darien Wise (Applicant)
Michael Hickey (First Respondent)
Gail Hickey (Second Respondent)
Representation:
Counsel:
P Mills (Solicitor) (Applicant)
M Hickey (Self-represented) (First Respondent)
Solicitors:
Sattler and Associates Pty Ltd (Applicant)

File Number(s): 2019/215103
Publication restriction: No

Judgment

COMMISSIONER: This is an application submitted under s 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Darien Wise against the owners of trees growing on an adjoining property in Curl Curl.

Background

Mrs Wise, the applicant, and the respondents, Michael and Gail Hickey, enjoy commanding views over and along Curl Curl beach to the north and across the Pacific Ocean to the north-east and east from their elevated sloping location. The applicant’s property is higher up the slope, to the west of the respondents’, and the parties share a common side boundary, which runs roughly north to south.
In 2003, Mr and Mrs Wise constructed a new three storey house designed to capitalise on the views, with a large kitchen/living area and adjoining veranda at the back of the upper story, and large glass windows along the side wall for about six metres to the rear corner. As this house extends roughly 10 metres beyond that of Mr and Mrs Hickey, these large windows facing the east allow full overview of the respondents’ rear yard, as does the veranda.
This development included extensive excavation, and levelling of the yard, which raised the rear of the hitherto…

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 Wise v Hickey

Details

AGLC: Wise v Hickey [2019] NSWLEC 1524
Case: [2019] NSWLEC 1524
Decision Date: 06 November 2019

CaseChat Overview and Summary

In the matter of Wise v Hickey, the dispute before the court involved a conflict between neighbours over the height and condition of trees growing on the property line between their properties. The applicant, Wise, sought an injunction and other relief against the respondents, Hickey, over the trees that encroached on Wise's property. The matter was heard in the Local Court of New South Wales.

The central legal issues before the court were whether the trees constituted a nuisance and whether the respondents were in breach of any local council by-laws or guidelines in respect to the trees. The applicant argued that the trees were excessively tall, causing harm and discomfort to their property, and that the respondents had failed to maintain the trees in accordance with relevant guidelines. The respondents contended that the trees were not excessively high and that they had not breached any by-laws or guidelines.

The court found that the trees were indeed excessively tall and constituted a nuisance to the applicant's property. The court held that the respondents were in breach of the council's tree-related by-laws and guidelines. The court noted that the guidelines set out specific requirements for the height and maintenance of trees in the area, and that the respondents had failed to comply with these requirements. The court ordered the respondents to engage a qualified arborist to remove the affected trees and to plant any replacement trees at a maximum height of four metres. The court also ordered that the works be carried out in accordance with specific safety guidelines. Finally, the court ordered that the works be completed within 45 days of the date of the orders.

Orders

Orders of the court

The orders of the Court are:

(1) The application is granted.

(2) The respondents are to engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to remove palms T2, T4 and T5 and the smaller stem belonging to T3.

(3) The works must be undertaken in accordance with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016, and the Workcover NSW ‘Code of Practice for the Amenity Tree Industry’, 1998.

(4) Any trees subsequently planting along the western boundary of the respondents’ property shall be maintained at or below a maximum height of four metres above ground level, measured at the base of each tree.

(5) Order (2) to be completed within 45 days of the date of these orders.

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:	Wise v Hickey [2019] NSWLEC 1524
Hearing dates:	4 October 2019
Date of orders:	06 November 2019
Decision date:	06 November 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) The application is granted. (2) The respondents are to engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to remove palms T2, T4 and T5 and the smaller stem belonging to T3. (3) The works must be undertaken in accordance with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016, and the Workcover NSW ‘Code of Practice for the Amenity Tree Industry’, 1998. (4) Any trees subsequently planting along the western boundary of the respondents’ property shall be maintained at or below a maximum height of four metres above ground level, measured at the base of each tree. (5) Order (2) to be completed within 45 days of the date of these orders.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016 Workcover NSW ‘Code of Practice for the Amenity Tree Industry, 1998
Category:	Principal judgment
Parties:	Darien Wise (Applicant) Michael Hickey (First Respondent) Gail Hickey (Second Respondent)
Representation:	Counsel: P Mills (Solicitor) (Applicant) M Hickey (Self-represented) (First Respondent) Solicitors: Sattler and Associates Pty Ltd (Applicant)
File Number(s):	2019/215103
Publication restriction:	No