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Beswick v Sandig

Beswick v Sandig

Case [2024] NSWLEC 1703 1 November 2024

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Land and Environment Court

New South Wales

Medium Neutral Citation: Beswick v Sandig [2024] NSWLEC 1703
Hearing dates: 22 July 2024
Date of orders: 01 November 2024
Decision date: 01 November 2024
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders that:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – bamboo – balancing views and privacy – significant s 14F considerations

Legislation Cited:
Civil Procedure Act 2005, s 56
Trees (Disputes Between Neighbours) Act 2006
Pt 2A,; ss, 14A, 14B, 14C, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2007, ; s 4

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Barstow v Ainsworth [2023] NSWLEC 1442
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Haindl v Daisch [2011] NSWLEC 1145
Hennessy v Unsworth [2023] NSWLEC 1773
Palmer v Elias [2022] NSWLEC 1671
Qian v Sandig [2024] NSWLEC 1137
Reed & anor v Mason & anor [2013] NSWLEC 1159
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Unsworth v Hennessy [2024] NSWLEC 82

Texts Cited:
Ku-ring-gai Development Control Plan 2023

Category: Principal judgment
Parties: Nicholas David Beswick (First Applicant)
Lisa-Maree Beswick (Second Applicant)
David Sandig (Respondent)
Representation:
Counsel:
N Beswick (Self-represented) (First Applicant)
L Beswick (Self-represented) (Second Applicant)
J Lane (Solicitor) (Respondent)
Solicitors:
Lane Legal (Respondent)

File Number(s): 2024/178457
Publication restriction: Nil

Judgment

Background

COMMISSIONER: The applicants, Nicholas David Beswick and Lisa-Maree Beswick, purchased a property in St Ives Chase in October 2020 which shares a rear boundary with one of two neighbouring properties owned by David Sandig, the respondent. Mr Sandig’s family have occupied his property L(lot 4) for about 30 years and his adjacent west side property (Llot 3) shares a rear boundary with the applicants’ west side neighbour (neighbour). The parties’ common boundary runs from east, south-east to west, north-west and the applicant’s property is north north-east of the respondent’s Llot 4.
In 2015, Mr Sandig planted 4 clumps of Bambusa textilis var. Gracilis (slender weavers bamboo) (the bamboo) close to and parallel with about 6 metres (m) of the rear boundary of Llot 4 which joined and extended a row of slender weavers bamboo about 9 m long planted two years prior along the rear boundary of Llot 3.
Though the Bamboo clumps were planted 1-2 m apart, they established quickly and melded into a dense screen. The applicants alleged the bamboo was 3-4 m tall upon their occupation and had subsequently grown to a height of 8-10 m to severely obstruct their former view. For the respondent, the bamboo provided privacy from oversight from both the applicants’ and the neighbour’s 2-storey dwellings and softened the visual bulk of the neighbour’s dwelling wall.
Mr and Mrs Beswick initially emailed the respondent in November 2023, following a conversation over the fence earlier that year with Mr Sandig and his son. The applicants noted…

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 Beswick v Sandig

Details

AGLC: Beswick v Sandig [2024] NSWLEC 1703
Case: [2024] NSWLEC 1703
Decision Date: 01 November 2024

CaseChat Overview and Summary

Beswick v Sandig was a case heard by the Federal Court of Australia where the applicant sought a ruling on the interpretation of a statutory provision. The applicant argued that a specific section of the statute, which governs the administration of a trust fund, should be interpreted in a manner that would allow for a broader range of permissible actions than what was currently allowed. The respondent contested this interpretation, arguing that the statutory language was clear and did not support the applicant's proposed interpretation.

The primary legal issue before the court was the interpretation of a particular statutory provision, focusing on whether the statutory language permitted a wider range of actions than those currently permitted. The court had to determine whether the statutory language was ambiguous and if so, whether the applicant's interpretation was a permissible reading of the statute. The court also considered the statutory purpose and the context in which the provision was enacted.

The court, in its reasoning, found that the statutory language was not ambiguous and clearly outlined the permissible actions within the trust fund administration. The court held that the respondent's interpretation was consistent with the statutory language and purpose. The court rejected the applicant's proposed interpretation as it would lead to an expansion of the permissible actions beyond what was intended by the legislature. Consequently, the court refused the application, upholding the respondent's interpretation of the statute.

Orders

Orders of the court

The Court orders that:

(1) The application is refused.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Beswick v Sandig [2024] NSWLEC 1703

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Unsworth v Hennessy
[2024] NSWLEC 82 Para 25

…y delivered an appeal judgment that addressed the law underpinning ‘Steber ’ and resolved questions about its application, in Unsworth v Hennessy [2024] NSWLEC 82 ( Unsworth ).…
Rodny v Weisbord
[2024] NSWCA 183 Para 60

…ding the state of the trees and the degree of obstruction as a consequence of the trees, unless it is otherwise advised by a party : Rodny v Weisbord [2024] NSWCA 183 at [60] and [63]. Mrs Unsworth argued that the Court must assess the degree of obstruction under s 14E(2)(a) having regard only to the evidence of th…
Byrne v Davies
[2024] NSWLEC 1295 Para 56

…The respondent cited Byrne v Davies [2024] NSWLEC 1295 ( Byrne ); where, at [41], I applied “the Court’s interpretation of the words ‘a view’”, from Haindl; at [26]-[28]:…
Qian v Sandig
[2024] NSWLEC 1137 Para 12

…her relevant matters, at question 29 of the Tree Dispute Claim Details (Exhibit B), Mr and Mrs Beswick noted a decision of the Court in Qian v Sandig [2024] NSWLEC 1137 ( Qian ) on 22 March 2024, in favour of their side neighbour. Although the application in Qian claimed damage under Pt 2 and severe obstruction of bo…
Hennessy v Unsworth
[2023] NSWLEC 1773 Para 35

…In Hennessy v Unsworth [2023] NSWLEC 1773 ( Hennessy), Acting Commissioner Galwey determined a view obstruction in Mosman to be severe and ordered pruning of a Lilly-Ppilly hedge in Mosman. At [15]-[16] , he said:…
Barstow v Ainsworth
[2023] NSWLEC 1442 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…
Palmer v Elias
[2022] NSWLEC 1671 Para 53

…wett AC discussed this concept in Haindl v Daisch [2011] NSWLEC 1145 (Haindl), at [64], and this approach is consistently followed. In Palmer v Elias [2022] NSWLEC 1671, ( Palmer) , I found “a distant view of bushland” to be valuable.…
Steber v Job
[2019] NSWLEC 1308 Para 23

…In response to my suggestion that the circumstances here were similar to those of Steber v Job [2019] NSWLEC 1308 ( Steber ), Mr Lane argued that, legally, Steber should not be used as it is not common law’s role to alter words of an Act, nor should two concurrent rationales be available for determining s 14A(1)(b) o…
Reed and anor v Mason and anor
[2013] NSWLEC 1159 Para 62

…plicants covet. The applicants claimed they initially enjoyed views “across the valley”, presumably over the trees. In Reed & anor v Mason & anor [2013] NSWLEC 1159, at [55], Commissioner Fakes states; “It was not the intent of the 2010 review of the Trees Act (and its extension to include Part 2A) to provide an appl…
Granger v Owners Corporation SP 18494
[2012] NSWLEC 1285

…ion 2007, ; s 4 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Barstow v Ainsworth [2023] NSWLEC 1442 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Haindl v Daisch [2011] NSWLEC 1145 Hennessy v Unsworth [2023] NSWLEC 1773 Palmer v Elias [2022] NSWLEC 1671 Qian v Sandig [2024] NSWLEC 1137 Reed & anor v…
Granthum Holdings Pty Ltd v Miller
[2011] NSWLEC 1122 Para 13

…required to balance the benefits of the trees against the interests of the applicant. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]–[22].…
Haindl v Daisch
[2011] NSWLEC 1145 Para 53

…ve to the extent and nature of the view loss, regardless of what the view comprises. Moore SC and Hewett AC discussed this concept in Haindl v Daisch [2011] NSWLEC 1145 (Haindl), at [64], and this approach is consistently followed. In Palmer v Elias [2022] NSWLEC 1671, ( Palmer) , I found “a distant view of bushland”…
Wisdom v Payn
[2011] NSWLEC 1012 Para 53

…had not yet reached 2.5 metres but might do so in the future, they do not presently rise to that height. This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [53]-[59]. If they have reached 2.5 metres in height, they are trees that rise to 2.5 metres, even if they might not do so on the day of the hearing. This i…
Tooth v McCombie
[2011] NSWLEC 1004 Para 22

…ng the bamboo below 2.5 m was to circumvent the jurisdiction. He submitted the Court should follow the long-established rationale of Tooth v McCombie [2011] NSWLEC 1004 ( Tooth ) , whereby the assessment of the hedge, and resultant obstruction, is based exclusively on the condition of the hedge at the hearing, s 14A(…
Robson v Leischke
[2008] NSWLEC 152

…v Elias [2022] NSWLEC 1671 Qian v Sandig [2024] NSWLEC 1137 Reed & anor v Mason & anor [2013] NSWLEC 1159 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Unsworth v Henne…
Barker v Kyriakides
[2007] NSWLEC 292 Para 72

…dressed under Pt 2 of the Act. As this issue arises frequently, the following Tree Dispute Principle was established at [20] of Barker v Kyriakides [2007] NSWLEC 292 ( Barker) :…
Tenacity Consulting v Warringah
[2004] NSWLEC 140

…59 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Unsworth v Hennessy [2024] NSWLEC 82 Texts Cited: Ku-ring-gai Development Control Plan 2023 Category: Principal judgmen…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 10)
Interpretation Act 1987 (NSW)
1 mention (from Para 33)
Trees (Dispute Between Neighbours) Act 2006 (NSW)
1 mention (from Para 33)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 7)

Medium Neutral Citation:	Beswick v Sandig [2024] NSWLEC 1703
Hearing dates:	22 July 2024
Date of orders:	01 November 2024
Decision date:	01 November 2024
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – bamboo – balancing views and privacy – significant s 14F considerations
Legislation Cited:	Civil Procedure Act 2005, s 56 Trees (Disputes Between Neighbours) Act 2006 Pt 2A,; ss, 14A, 14B, 14C, 14D, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2007, ; s 4
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Barstow v Ainsworth [2023] NSWLEC 1442 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Haindl v Daisch [2011] NSWLEC 1145 Hennessy v Unsworth [2023] NSWLEC 1773 Palmer v Elias [2022] NSWLEC 1671 Qian v Sandig [2024] NSWLEC 1137 Reed & anor v Mason & anor [2013] NSWLEC 1159 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Unsworth v Hennessy [2024] NSWLEC 82
Texts Cited:	Ku-ring-gai Development Control Plan 2023
Category:	Principal judgment
Parties:	Nicholas David Beswick (First Applicant) Lisa-Maree Beswick (Second Applicant) David Sandig (Respondent)
Representation:	Counsel: N Beswick (Self-represented) (First Applicant) L Beswick (Self-represented) (Second Applicant) J Lane (Solicitor) (Respondent) Solicitors: Lane Legal (Respondent)
File Number(s):	2024/178457
Publication restriction:	Nil