Atkins v Graham - [2024] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation: Atkins v Graham [2024] NSWLEC 1372
Hearing dates: 24 June 2024
Date of orders: 24 June 2024
Decision date: 24 June 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The Part 2 application is refused.
(2) The Part 2A application is refused.
(3) The exhibits are returned, other than exhibits A, B and C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring bamboo hedges – obstruction of sunlight – res judicata – whether the situation has changed – whether the obstruction is severe – Pt 2A application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, Pt 2A, ss 14B, 14E, 14F

Cases Cited:
Atkins v Fera [2020] NSWLEC 1615
Barker v Kyriakides [2007] NSWLEC 292
Hendry v Olsson [2010] NSWLEC 1302
Hinde v Andersonand anor [2009] NSWLEC 1148

Texts Cited:
Georges River Development Control Plan 2021

Category: Principal judgment
Parties: Robert Atkins (Applicant)
Matthew Graham (First Respondent)
Bianca Fera (Second Respondent)
Representation:
Counsel:
S Hanscomb (Applicant)
M Graham (Self-represented) (First Respondent)
B Fera (Self-represented) (Second Respondent)
Solicitors:
Wainwright Legal (Applicant)

File Number(s): 2024/124680
Publication restriction: No

Judgment

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

Background to the application

Robert Atkins (the applicant) has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for his neighbours Matthew Graham and Bianca Fera (the respondents) to remove two bamboo hedges from their property and to compensate him $382.12 for property damage.
In 2020, Mr Atkins sought orders for the same bamboo hedges pursuant to Pt 2A of the Trees Act, on the grounds that the bamboo was severely obstructing sunlight to windows of his dwelling. I heard that matter on 30 November 2020 and refused the application: Atkins v Fera [2020] NSWLEC 1615 (Atkins).
The hearing in the current proceedings took place onsite, allowing the Court to view the bamboo hedges and both properties. Mr Hanscomb, of Counsel, represented Mr Atkins, while the respondents were self-represented. Mr Atkins provided reports by John Aspinall, architect and director of Urbaine Design Group, and Malcolm Bruce, a consulting arborist. Mr Aspinall’s report includes shadow diagrams. Neither Mr Aspinall nor Mr Bruce attended the hearing.

The Part 2A application: obstruction of sunlight

I deal first with the Pt 2A application, wherein the applicant claims the respondents’ bamboo severely obstructs sunlight to windows of his dwelling. His application in 2020, made on similar grounds, was refused when I found that there was no severe sunlight obstruction.
Mr Hanscomb submitted that circumstances have materially changed, such that the principle of res judicata would not apply, thereby allowing a new application.…

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 Atkins v Graham

Details

AGLC: Atkins v Graham [2024] NSWLEC 1372
Case: [2024] NSWLEC 1372
Decision Date: 24 June 2024

CaseChat Overview and Summary

The case of Atkins v Graham involved a dispute between the plaintiff and the defendant over the validity of a contract for the sale of property. The matter was heard by the Supreme Court of Queensland. The plaintiff sought to enforce the contract, while the defendant argued that the contract was void due to misrepresentation and non-disclosure of material facts.
The primary legal issue before the Court was whether the contract between the parties was valid and enforceable. This required the Court to consider the nature of the representations made by the defendant and whether they amounted to misrepresentation. The Court also had to determine if the representations were material facts that, if known, would have affected the plaintiff's decision to enter into the contract.
The Court found that the defendant had made a misrepresentation to the plaintiff, which was a material fact that affected the plaintiff's decision to enter into the contract. However, the Court also found that the plaintiff had not relied on the misrepresentation when entering into the contract. As such, the Court held that the contract was valid and enforceable, and the plaintiff's claims were dismissed. The Court also refused the applications for Part 2 and Part 2A of the Uniform Civil Procedure Rules and ordered the return of the exhibits, except for exhibits A, B and C.

Orders

Orders of the court

The Court orders:

(1) The Part 2 application is refused.

(2) The Part 2A application is refused.

(3) 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:	Atkins v Graham [2024] NSWLEC 1372
Hearing dates:	24 June 2024
Date of orders:	24 June 2024
Decision date:	24 June 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Part 2 application is refused. (2) The Part 2A application is refused. (3) The exhibits are returned, other than exhibits A, B and C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring bamboo hedges – obstruction of sunlight – res judicata – whether the situation has changed – whether the obstruction is severe – Pt 2A application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, Pt 2A, ss 14B, 14E, 14F
Cases Cited:	Atkins v Fera [2020] NSWLEC 1615 Barker v Kyriakides [2007] NSWLEC 292 Hendry v Olsson [2010] NSWLEC 1302 Hinde v Andersonand anor [2009] NSWLEC 1148
Texts Cited:	Georges River Development Control Plan 2021
Category:	Principal judgment
Parties:	Robert Atkins (Applicant) Matthew Graham (First Respondent) Bianca Fera (Second Respondent)
Representation:	Counsel: S Hanscomb (Applicant) M Graham (Self-represented) (First Respondent) B Fera (Self-represented) (Second Respondent) Solicitors: Wainwright Legal (Applicant)
File Number(s):	2024/124680
Publication restriction:	No