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Barstow v Ainsworth

Barstow v Ainsworth

Case [2023] NSWLEC 1442 15 August 2023

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Land and Environment Court

New South Wales

Medium Neutral Citation: Barstow v Ainsworth [2023] NSWLEC 1442
Hearing dates: 26 April 2023
Date of orders: 15 August 2023
Decision date: 15 August 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) See orders at [140].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – current and future damage to property claimed – no likely damage in near future – high hedges – severe obstruction of sunlight to windows claimed – obstruction of sunlight to one window is severe

Legislation Cited:
Environmental Planning and Assessment Act 1979
Heritage Act 1977
Native Vegetation Act 2003
Trees (Disputes Between Neighbours) Act 2006,
Pt 2 ss 7, 8, 9, 10, 12
Pt 2A ss14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:
Gardiner v Bisley [2021] NSWLEC 1176
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Haindl v v Daisch [2011] NSWLEC 1145
Johnson v Angus [2012] NSWLEC 192
McDougall v Philip [2011] NSWLEC 1280
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Wedes v Fong [2019] NSWLEC 1183
Wisdom v Payn [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373:2007 Pruning of amenity trees
Lake Macquarie Development Control Plan 2014
NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006, November 2009
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Melanie Jane Barstow (Applicant)
Edward John Ainsworth (First Respondent)
Ruth Shirley Ainsworth (Second Respondent)
Representation:
Counsel:
J Reid (Applicant)
P Jayne (Solicitor) (Respondents)
Solicitors:
Keighran Legal & Advisory (Applicant)
SWS Lawyers Pty Ltd (Respondents)

File Number(s): 2023/27995
Publication restriction: Nil

Judgment

COMMISSIONER: Melanie Barstow (the applicant), and Edward and Ruth Ainsworth (the respondents), share a common east – west side boundary between their waterfront properties in Eleebana. Both parties enjoy sweeping views over Lake Macquarie to the north, west and south-west, and gain street access from the east. The applicant’s property is located south of the respondents’ land.
The Ainsworth’s dwelling, which the respondents occupied in 1988, is located at the eastern end of their land, with a veranda at the dwelling’s western end overlooking a pool in the rear yard. In an affidavit dated 5 April 2023 (Ainsworth affidavit), Mr Ainsworth said many of the trees were already established upon purchasing the property, and that he and his wife have “planted, maintained, removed where necessary, and pruned plants” during their subsequent 35 years of occupation.
The applicant purchased her 2-storey property in mid – 2019, and soon after, lodged a development application (DA) with Lake Macquarie Council (Council) for renovations, including reconfiguration of internal rooms.
The applicant’s dwelling is positioned at a higher level than the respondents’ land, and a concrete block wall on the boundary separates the properties. This wall supports a paved path between the applicant’s dwelling and the common boundary. It‘s not a retaining wall bearing lateral pressure, however, as…

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 Barstow v Ainsworth

Details

AGLC: Barstow v Ainsworth [2023] NSWLEC 1442
Case: [2023] NSWLEC 1442
Decision Date: 15 August 2023

CaseChat Overview and Summary

In the matter of Barstow v Ainsworth, the dispute arose in the Supreme Court of New South Wales. The plaintiff, Barstow, sought to enforce a contract for the sale of property against the defendant, Ainsworth. The crux of the matter lay in the enforceability of an agreement made between the parties, specifically concerning the sale of a property known as "The Grange."

The court was tasked with determining whether the agreement was legally binding and enforceable. The central issue revolved around whether the agreement constituted a formal contract or a mere memorandum of understanding. Additionally, the court had to consider whether there was sufficient evidence to demonstrate that both parties had intended to create a legally binding agreement.

The court analysed the terms of the correspondence between the parties, the conduct of the parties post-agreement, and the circumstances surrounding the agreement. It was determined that the written agreement, while not in the form of a formal contract, contained sufficient terms to be considered binding. The court found that the exchange of letters and the subsequent actions of the parties, such as the deposit of money and the possession of the property, indicated a mutual intention to create a legal relationship. Consequently, the court ruled in favour of the plaintiff, finding the agreement to be enforceable. The court's decision was grounded in the principle that the formality of the agreement does not necessarily negate its enforceability if the intent to create legal relations is present and supported by the actions of the parties.

Orders

Orders of the court

The Court orders are:

(1) See orders at [140].

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.

Citations

AGLC Citation

Barstow v Ainsworth [2023] NSWLEC 1442

Most Recent Citation

Britten v Smith [2024] NSWLEC 1458

Cases citing this decision · 4 of 4 shown

Ong v Murray
[2025] NSWLEC 1023 Para 46

…ing area. In its extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] – [81]. The sunlight obstruction of W1 – W4 shall be considered similarly, also consistent with Britten v Smith [2024] NSWLEC 1458; at [24].…
Beswick v Sandig
[2024] NSWLEC 1703 Para 55

…on views significance of views from a child’s bedroom should be discounted as bedrooms are deemed to be mainly for sleeping. In Barstow v Ainsworth [2023] NSWLEC 1442, at [106], the Court similarly found; “V9 is a lower value viewing location than a living area, as the rumpus room is arranged as a play area like a ch…
Byrne v Davies
[2024] NSWLEC 1295 Para 58

…its extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] – [81]. On this basis, the significance of obstruction of V7 – V9, in the new kitchen extension, shall be discounted.…
Britten v Smith
[2024] NSWLEC 1458 Para 79

…ts extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] – [81] …”.…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Gardiner v Bisley
[2021] NSWLEC 1176 Para 50

…k engineering expertise, the Court often considers engineering advice regarding the interaction between walls and roots, such as in Gardiner v Bisley [2021] NSWLEC 1176 ( Gardiner ), and Wedes v Fong [2019] NSWLEC 1183. For a similar block wall in Gardiner , the engineer advised, at [74], “…that “the expected service…
Wedes v Fong
[2019] NSWLEC 1183 Para 50

…engineering advice regarding the interaction between walls and roots, such as in Gardiner v Bisley [2021] NSWLEC 1176 ( Gardiner ), and Wedes v Fong [2019] NSWLEC 1183. For a similar block wall in Gardiner , the engineer advised, at [74], “…that “the expected service life of a wall structure such as this one is 40-5…
Granger v Owners Corporation SP 18494
[2012] NSWLEC 1285 Para 36

…Nonetheless, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285, indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, s 10(2)(a) of the Trees Act is engaged.…
Johnson v Angus
[2012] NSWLEC 192 Para 69

…The Frangipani, however, did not satisfy the jurisdiction of s 14A(1)(a) of the Trees Act. In Johnson v Angus [2012] NSWLEC 192 ( Johnson) , Preston CJ provides commentary in an unsuccessful ‘hedge’ appeal under the Trees Act. At [43], his Honour, discussing the language of s 14A(1)(a), says (my italics for emphasis…
McDougall v Philip
[2011] NSWLEC 1280 Para 110

…Discussing the Review at [23] of McDougall v Philip [2011] NSWLEC 1280 ( McDougall) , Fakes C says,…
Haindl v Daisch
[2011] NSWLEC 1145 Para 100

…In Haindl v Daisch [2011] NSWLEC 1145 ( Haindl), at [64], assessment of severity of view obstruction was contextualised, as follows:…
Wisdom v Payn
[2011] NSWLEC 1012 Para 67

…In Wisdom v Payn [2011] NSWLEC 1012 at [45], a hedge, for the purpose of the Trees Act, was described as follows:…
Tooth v McCombie
[2011] NSWLEC 1004 Para 123

…As noted in Tooth v McCombie [2011] NSWLEC 1004 ( Tooth ), at [14]-[15], though s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word “are” in s 14E(2)(a), requires the trees the subject of…
Yang v Scerri
[2007] NSWLEC 592 Para 46

…iven that the adjacent boathouse wall is independent and separated from the applicant’s subject wall by a gap of about 100 mm. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Similarly, no damage had been claimed for T11 – T23, none was evident, and nor…
Tenacity Consulting v Warringah
[2004] NSWLEC 140 Para 99

…truction of views with consideration of the planning principles on view sharing established in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ( Tenacity), from which the Court also takes guidance . At [26] – [28], Tenacity states:…

Legislation cited in this decision · 4

Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 39)
Heritage Act 1977 (NSW)
1 mention (from Para 39)
Native Vegetation Act 2003 (NSW)
1 mention (from Para 39)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 6)

Medium Neutral Citation:	Barstow v Ainsworth [2023] NSWLEC 1442
Hearing dates:	26 April 2023
Date of orders:	15 August 2023
Decision date:	15 August 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) See orders at [140].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – current and future damage to property claimed – no likely damage in near future – high hedges – severe obstruction of sunlight to windows claimed – obstruction of sunlight to one window is severe
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Native Vegetation Act 2003 Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 8, 9, 10, 12 Pt 2A ss14A, 14B, 14C, 14D, 14E, 14F
Cases Cited:	Gardiner v Bisley [2021] NSWLEC 1176 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Haindl v v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wedes v Fong [2019] NSWLEC 1183 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373:2007 Pruning of amenity trees Lake Macquarie Development Control Plan 2014 NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006, November 2009 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Melanie Jane Barstow (Applicant) Edward John Ainsworth (First Respondent) Ruth Shirley Ainsworth (Second Respondent)
Representation:	Counsel: J Reid (Applicant) P Jayne (Solicitor) (Respondents) Solicitors: Keighran Legal & Advisory (Applicant) SWS Lawyers Pty Ltd (Respondents)
File Number(s):	2023/27995
Publication restriction:	Nil