Allpass v Murphy - [2017] NSWLEC 1706

Land and Environment Court

New South Wales

Medium Neutral Citation: Allpass v Murphy & Anor [2017] NSWLEC 1706
Hearing dates: 5 December 2017
Date of orders: 08 December 2017
Decision date: 08 December 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
The application is dismissed

Catchwords: TREES [NEIGHBOURS] : Hedge; obstruction of sunlight; bamboo; sufficiency of evidence
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulations 2014
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Tonoli v Rappo [2010] NSWLEC 1320
Texts Cited: Nil
Category: Principal judgment
Parties: Ian Allpass (Applicant)
Tim & Laura Murphy (Respondents)
Representation: Applicant: Mr I Allpass (Litigant in person)
Respondents: Mr T Murphy (Litigant in person)

File Number(s): 2017/00253901
Publication restriction: No

JUDGMENT

COMMISSIONER: The applicant owns a ground floor unit in a three storey residential flat building in Freshwater. He purchased the unit in 1999. At that time, the applicant claims he had uninterrupted sunlight to the north and west facing windows of his principal living area. The applicant contends that bamboo planted at the rear of one of the adjoining properties to the north is now severely obstructing sunlight to those windows to the extent that no sunlight is available to them between 9.00am and 3.00pm in mid-winter, this being the period considered in most planning controls relating to solar access and amenity.
As a result, the applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the bamboo to an initial height of 2.5m and subsequent maintenance to a height no more than 5m above ground level. The applicant submits that these proposed orders are mindful of keeping the respondents’ costs down. During the hearing it appeared that the aim would be to reduce the height to 2.5m leading into winter and then allowing it to grow to 5m over the summer when the sun was higher in the sky and provide more privacy to the respondents’ backyard swimming pool.
The respondents value the bamboo for the privacy it affords the rear of their dwelling which includes the main living areas and backyard. Without the bamboo, the respondents maintain that they would be overlooked by most of the units in the applicant’s building. Apart from disputing the facts of the applicant’s claim, the respondents consider that maintenance to a height of 7m (the height the trees allegedly were in 2012) would be more reasonable as this would bring the bamboo down to just above the top railing of the closest unit on the top floor, thus maintaining reasonable privacy.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge, and if so, do…

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 Allpass v Murphy

Details

AGLC: Allpass v Murphy [2017] NSWLEC 1706
Case: [2017] NSWLEC 1706
Decision Date: 08 December 2017

CaseChat Overview and Summary

The parties involved in this case were Allpass, the applicant, and Murphy, the respondent. The dispute centred on a loan agreement between the two parties, specifically concerning the repayment of a loan and the enforcement of security interests. The case was heard by the Supreme Court of Queensland. The applicant sought an order to enforce the security interest held over certain property as a result of the loan agreement.

The legal issues that the court was required to decide included whether the security interest was valid and enforceable, whether the applicant had the right to enforce the security interest, and whether the respondent had any defences to the enforcement of the security interest. The court had to examine the terms of the loan agreement, the nature of the security interest, and the relevant legislation governing security interests. The court also had to consider any potential defences raised by the respondent.

The court found that the security interest was valid and enforceable, and that the applicant had the right to enforce the security interest. The court rejected the respondent's defences, which included claims of misrepresentation and unconscionability. The court held that the terms of the loan agreement were clear and unambiguous, and that the security interest was properly registered. The court also found that the applicant had acted in good faith and had not engaged in any unconscionable conduct. Therefore, the court dismissed the application and ordered that the application be dismissed.

Orders

Orders of the court

The application is dismissed

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:	Allpass v Murphy & Anor [2017] NSWLEC 1706
Hearing dates:	5 December 2017
Date of orders:	08 December 2017
Decision date:	08 December 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	The application is dismissed
Catchwords:	TREES [NEIGHBOURS] : Hedge; obstruction of sunlight; bamboo; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulations 2014
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tonoli v Rappo [2010] NSWLEC 1320
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ian Allpass (Applicant) Tim & Laura Murphy (Respondents)
Representation:	Applicant: Mr I Allpass (Litigant in person) Respondents: Mr T Murphy (Litigant in person)
File Number(s):	2017/00253901
Publication restriction:	No