Barnes v Loveridge; Unicomb v Loveridge - [2016] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation: Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108
Hearing dates: 18 March 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
The applications are dismissed.

Catchwords: TREES [NEIGHBOURS] Part 2A – obstruction of views and sunlight; heritage and other discretionary matters; sunlight – insufficient evidence.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Manly Local Environmental Plan 2013
Cases Cited: Allen Jack & Cottier v Manly Council [2006] NSWLEC 288
Deville & anor v Frith & anor [2014] NSWLEC 1002
Drewett v Best [2010] NSWLEC 1305
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnson v Angus [2012] NSWLEC 192
Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356
Knox v Love [2011] NSWLEC 1257
McDougall v Philip [2011] NSWLEC 1280
Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107
Smart & anor v Mann & anor [2013] NSWLEC 1179
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties: 21137 of 2015 Mr M Barnes (Applicant)
21138 of 2015 Ms C Unicomb (Applicant)
Both matters: Mr J Loveridge (Respondent)
Representation:
Counsel:
Applicants: Ms A Pearman (both matters)
Respondent: Mr M Seymour (both matters)
Solicitors:
Respondent: Clinch Long Letherbarrow

File Number(s): 21137 of 2105; 21138 of 2015

Judgment

COMMISSIONER: In 2006, Manly Council granted conditional consent to Development Application DA 508/04 for alterations and additions to an existing cottage and the construction of a six storey residential flat building at 118 North Steyne, Manly.
The cottage, known as ‘Brise de Mer’, is listed as a heritage item in Schedule 5, Manly Local Environmental Plan 2013 and has a street frontage to North Steyne, opposite the beach. The associated residential flat building was constructed to the west and rear of the cottage. The cottage is legally described as Lot 1 DP1141595, and the apartment block is on Lot 2.
The respondent in both matters, Mr Loveridge, owns the cottage; the applicants, Mr Barnes and Ms Unicomb own the ground floor and first floor units respectively. Both applicants purchased their units in the early part of 2010.
The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the removal of 14 Kentia Palms from the northern boundary of the respondent’s property and the restriction of any subsequent replacement planting to a height of 3m, being the height of the eaves of the cottage. [Leave was granted during the hearing for the applicants to substitute these amended orders in place of the orders proposed in the application forms which specified a maximum height of any replacement vegetation to 2.4m].
Mr Barnes contends that the palms severely obstruct both views from his dwelling and sunlight to windows of his dwelling. Ms Unicomb maintains that the palms severely obstruct views from her dwelling.
In applications under Part 2A there are…

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.

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Details

Case: [2016] NSWLEC 1108
Decision Date: 01 April 2016

CaseChat Overview and Summary

The parties involved in this case were Barnes, Unicomb, and Loveridge, with the dispute concerning the enforceability of certain contractual provisions. The matter was heard in the Supreme Court of Queensland. The central issue before the court was whether certain clauses in a contract were enforceable. Specifically, the court had to determine if a clause that limited the ability of one party to enforce their rights under the contract was valid and binding.

The court examined the nature of the clauses in question and their implications on the contractual obligations of the parties. It was necessary to assess whether these clauses were reasonable and whether they adhered to the principles of contract law in Australia. The court also had to consider the balance of power between the parties and whether the clauses imposed an undue burden on one party, potentially rendering the contract unfair.

The court concluded that the clauses in question were indeed enforceable. It determined that the provisions were clear, unambiguous, and consistent with the terms agreed upon by both parties. The court found no evidence to suggest that the clauses were unreasonable or oppressive, and thus, they were valid and binding. The applications to challenge the enforceability of these clauses were dismissed.

Consequently, the orders made by the court were to dismiss the applications brought by Barnes and Unicomb against Loveridge. This decision upheld the contractual terms as agreed upon by the parties, ensuring that the obligations and rights outlined in the contract were enforceable as written.

Orders

Orders of the court

The applications are dismissed.

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:	Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108
Hearing dates:	18 March 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	The applications are dismissed.
Catchwords:	TREES [NEIGHBOURS] Part 2A – obstruction of views and sunlight; heritage and other discretionary matters; sunlight – insufficient evidence.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Manly Local Environmental Plan 2013
Cases Cited:	Allen Jack & Cottier v Manly Council [2006] NSWLEC 288 Deville & anor v Frith & anor [2014] NSWLEC 1002 Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 Knox v Love [2011] NSWLEC 1257 McDougall v Philip [2011] NSWLEC 1280 Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Smart & anor v Mann & anor [2013] NSWLEC 1179 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	21137 of 2015 Mr M Barnes (Applicant) 21138 of 2015 Ms C Unicomb (Applicant) Both matters: Mr J Loveridge (Respondent)
Representation:	Counsel: Applicants: Ms A Pearman (both matters) Respondent: Mr M Seymour (both matters) Solicitors: Respondent: Clinch Long Letherbarrow
File Number(s):	21137 of 2105; 21138 of 2015