Bako v Aldred - [2012] NSWLEC 1216

Land and Environment Court

New South Wales

Medium Neutral Citation: Bako v Aldred & anor [2012] NSWLEC 1216
Hearing dates: 1 August 2012
Decision date: 01 August 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; impact on views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Ball v Bahramali [2010] NSWLEC 1334
Haindl v Daisch [2011] NSWLEC 1145
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category: Principal judgment
Parties: Ms Sophia Bako (Applicant)
Mrs Pamela Aldred and Mr Michael Aldred (Respondents)
Representation: Applicant: Mr Robert White
Respondents: Mr Scott Nash
Respondents: Jenkins + Associates

File Number(s): 20210 of 2012

Judgment

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

COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Vaucluse against the owners of trees growing on an adjoining property.

The applicant is seeking orders for the trimming of four trees to a height not exceeding the bottom of the deck at the rear of the applicant's property and their subsequent maintenance at that height.

The orders are sought in order to remedy, restrain or prevent a severe obstruction of a view from a dwelling.

The respondents do not wish the trees to be pruned, as they are concerned about impacts on tree health as well as a loss of privacy.

The trees subject to the application are four of many trees growing at the rear of the respondents' property. Tree 1 is a Privet, Tree 2 is an Italian Cypress, Tree 3 is a Norfolk Island Pine and Tree 4 is a Native Daphne. All trees show signs of previous lopping and subsequent regrowth.

It was agreed that the trees meet the jurisdictional test in s 14A in that there are two or more trees, planted so as to form a hedge, which rise to a height of at least 2.5 m and are on appropriately zoned land.

The applicant purchased her property about three years ago and contends that at that time she and her family enjoyed uninterrupted panoramic views across the harbour to Georges Heights, Middle Head and Manly. She states that in the time she has owned the property, the trees have grown and now obstruct views from the outdoor entertainment area/ pool deck, associated seating areas, the barbecue and from within the dining room. In her application claim form the applicant describes the nature and extent of each affected view as a "partial obstruction".

Observations

The hearing was held on site and commenced with an inspection of the nominated viewing points.

The trees in question are located forward of the western end of the extensive deck. When standing close to the balustrade on the northern edge I noted: some, but only minor, obstruction of water views by Tree 1; a…

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 Bako v Aldred

Details

AGLC: Bako v Aldred [2012] NSWLEC 1216
Case: [2012] NSWLEC 1216
Decision Date: 01 August 2012

CaseChat Overview and Summary

In the case of Bako v Aldred, the applicant sought an order to overturn a decision of the Australian Charities and Not-for-profits Commission (ACNC) to deregister the respondent charity. The respondent charity, represented by its trustee, argued against the application, claiming the decision was lawful and within the ACNC’s statutory powers. The Federal Court was tasked with reviewing the legality of the ACNC's decision.

The primary legal issue before the court was whether the ACNC's decision to deregister the charity was legally sound. This required the court to consider whether the ACNC had correctly applied the relevant statutory provisions and whether the decision was reasonable and lawful. The applicant argued that the decision was flawed and should be quashed, while the respondent maintained that the decision was valid and within the ACNC's authority.

The court examined the statutory framework governing the ACNC’s powers and found that the ACNC had correctly identified the grounds for deregistration. It was determined that the decision-making process was procedurally fair and that the ACNC had correctly applied the relevant criteria in making its decision. Consequently, the court held that the ACNC’s decision to deregister the charity was lawful and that the application should be dismissed. The applicant's appeal was thus unsuccessful, and the application was dismissed.

Orders

Orders of the court

Application 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:	Bako v Aldred & anor [2012] NSWLEC 1216
Hearing dates:	1 August 2012
Decision date:	01 August 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; impact on views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Ball v Bahramali [2010] NSWLEC 1334 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Ms Sophia Bako (Applicant) Mrs Pamela Aldred and Mr Michael Aldred (Respondents)
Representation:	Applicant: Mr Robert White Respondents: Mr Scott Nash Respondents: Jenkins + Associates
File Number(s):	20210 of 2012