Hyde v Vagg [2020] NSWLEC 1009

Land and Environment Court New South Wales

Medium Neutral Citation: Hyde v Vagg [2020] NSWLEC 1009 Hearing dates: 27 November 2019 Date of orders: 08 January 2020 Decision date: 08 January 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is granted. (2) Within 45 days of these orders, the First Respondent and the Second Respondent must: (a) Prune the Camellia trees at the eastern end of the House Side Hedge 1 down to the height of the Harbour Side Hedge 2 so that the length of Hedge 1 is reduced by 1.5 metres, such that Hedge 1 then becomes 7 metres in length and Hedge 2 is thus lengthened to 6.7 metres. (b) Prune the top of this 7 metre long House Side Hedge 1 to a horizontal line based on a height at or below 2.3 metres above ground level, measured from the western end (adjacent the house). (c) Prune the top of the 6.7 metre long Harbour Side Hedge 2 to a horizontal line based on a height at or below 2.4 metres above ground level, measured at the eastern end (adjacent the rear property boundary). (3) Pruning as specified in Order (2)(b) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.5 metres above ground level, measured from its western end (adjacent the house). (4) Pruning as specified in Order (2)(c) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.6 metres above ground level, measured from its eastern end (adjacent the rear property boundary). (5) The work required under Orders (2), (3) and (4) must be carried out: (a) at the expense of the First Respondent and the Second Respondent; (b) using the services of a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances; and in accordance the Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. (6) The applicant is to provide all reasonable access to the respondents' contracted arborist or horticulturist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing. (7) Should the Camellia hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at lengths and heights which do not exceed those specified in Order (2). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – iconic views Legislation Cited: Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2009 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Holland v Bell [2017] NSWLEC 1322 Kennard v Fite [2019] NSWLEC 1327 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: AS4373:2007 Pruning of amenity trees North Sydney Development Control Plan 2013 Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Fiona Hyde (Applicant) Robert Andrew Vagg (First Respondent) Frances Elizabeth Vagg (Second Respondent) Representation: Counsel: A Pearman (Applicant) M Galvin (Respondents)