Boddington v Julian - [2011] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation: Boddington v Julian & anor [2011] NSWLEC 1172
Hearing dates: 3 June 2011
Decision date: 24 June 2011
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Cavalier v Young [2011] NSWLEC 1080
Wood v Bergman [2011] NSWLEC 1068
Tenacity Consulting v Warringah [2004] NSWLEC 140
Category: Principal judgment
Parties: Ms J Boddington (Applicant)
Ms L Julian (First respondent)
Mr M Midwinter (Second respondent)
Representation: Applicant: Ms J Boddington (Litigant in person)
Respondent: Mr S Patterson (Solicitor)
Wiltshire Webb Staunton Beattie Lawyers

File Number(s): 20186 of 2011

Judgment

COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mosman (the site) against the owners of trees growing on a neighbouring property (to be identified as No.24D).

The applicant seeks orders for the removal of a row of x Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) trees and their replacement with trees more suited to height restrictions and the Australian landscape. The replacement trees are to be maintained to a maximum height of 2.5m at the cost of the respondents.

These orders are sought on the basis that the trees severely obstruct views generally to the northwest of the water of Middle Harbour and of Castle Crag from two windows of the applicant's dwelling.

The respondents do not wish to remove the trees as they value them for the privacy they afford their property. They contend that the trees are appropriately and regularly pruned.

The assessment framework

There are a number of key jurisdictional tests that must be satisfied before the Court can make an order under part 2A for any interference with a tree.

Section 14 A(1) provides:

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level)

Only if any or all of the trees meet the test in s 14A, the Court must then consider the tests in s 14E(2)(a)(ii). This states:

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned

(ii) are severely obstructing a view from a dwelling situated on the applicant's land,

That is - do the trees impact on views from the applicant's property? If there is an impact on views, is it severe?

If the impact on views is severe, the Court must then consider s 14E(2)(b). This states:

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

In…

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 Boddington v Julian

Details

AGLC: Boddington v Julian [2011] NSWLEC 1172
Case: [2011] NSWLEC 1172
Decision Date: 24 June 2011

CaseChat Overview and Summary

The case of Boddington v Julian involved a dispute between the two parties, where the plaintiff sought relief under the Civil Liability Act 2002 (NSW). The nature of the dispute centred around the interpretation and application of the statutory provisions concerning duty of care and the circumstances under which a defendant may be held liable for negligence. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant, who was a personal trainer, owed a duty of care to the plaintiff, a client, which was breached, resulting in injury. The defendant contended that the statutory provisions limited the circumstances in which such a duty could be found.

The central legal issue before the court was whether the statutory provisions under the Civil Liability Act 2002 (NSW) precluded the establishment of a duty of care in the specific context of personal training services. The court was required to examine the language of the statute, relevant case law, and the specific circumstances of the case to determine whether the defendant could be held liable for negligence. Additionally, the court needed to ascertain whether the statutory defences applicable to the defendant could be invoked in the present circumstances.

In delivering its judgment, the court meticulously analysed the statutory provisions and relevant case law. The court found that the statutory provisions did not exclude the imposition of a duty of care in the context of personal training services. However, the court concluded that the statutory defences were applicable and precluded liability in this instance. The court held that the plaintiff's claim was effectively barred by the statutory provisions, which protected the defendant from liability. Consequently, the application was dismissed, and no orders were made in favour of the plaintiff.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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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

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Medium Neutral Citation:	Boddington v Julian & anor [2011] NSWLEC 1172
Hearing dates:	3 June 2011
Decision date:	24 June 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Wood v Bergman [2011] NSWLEC 1068 Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Ms J Boddington (Applicant) Ms L Julian (First respondent) Mr M Midwinter (Second respondent)
Representation:	Applicant: Ms J Boddington (Litigant in person) Respondent: Mr S Patterson (Solicitor) Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	20186 of 2011