Bowden & anor v Grayson & anor - [2013] NSWLEC 1161

Land and Environment Court

New South Wales

Medium Neutral Citation: Bowden & anor v Grayson & anor [2013] NSWLEC 1161
Hearing dates: 18 July 2013
Decision date: 19 July 2013
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed.

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; iconic views; view obstruction existed when applicant purchased the property; balance of matters at s 14F; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Interpretation Act 1987
Cases Cited: De Zylva & anor v Staas & anor [2012] NSWLEC 1242
Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355
Haindl v Daisch [2011] NSWLEC 1145
McDougall v Philip [2011] NSWLEC 1280
Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category: Principal judgment
Parties:
Keith Bowden and Linda Bowden (Applicants)
Robert Grayson (First Respondent)
Linda Grayson (Second Respondent)
Representation:
Scott Nash (Applicants)
Tatijana Stancevic, PC Law (Applicants)
Grant Christmas, Apex Law (Respondents)

File Number(s): 20271 of 2013

Judgment

Introduction

The land at Balls Head rises quickly northwards from Berrys Bay into the residential suburb of Waverton. Due to the lie of the land and the positions of dwellings, trees and other features, some houses enjoy views not available to others. The sloping land also gives rise to overlooking issues between neighbouring properties.

Robert and Linda Grayson ("the respondents") have lived at their property since 1996. There is only one other dwelling between theirs and Berrys Bay. They have views to the south and southeast that include Berrys Bay, Sydney Harbour and the Harbour Bridge. They have planted trees in their back garden to gain privacy from dwellings higher up to the east, in Larkin Street, and to the north, in Balls Head Road.

Keith and Linda Bowden ("the applicants") bought the neighbouring property to the north in September 2011. They say the Graysons' trees obstruct views from their dwelling. After failing in their attempts to reach an agreement with the Graysons regarding tree pruning, they applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for some of the trees to be pruned.

At the onsite hearing Mr Nash, counsel for the applicants, clarified the orders being sought. The applicants seek pruning of 27 trees (T9-T16, T19-T27 and T30-T39) to gain views from a bedroom (V1), sunroom (V2), dining room (V4) and family room (V5). They do not seek any orders regarding views from the kitchen (V3 in the application). They wish the trees to be pruned to a height of 4.5 metres and thereafter maintained at a height no greater than 5 metres.

The respondents do not wish to prune the trees, which they say provide privacy to their property.

Issues agreed and issues to be determined

The parties are agreed on the jurisdictional questions at s 14A of the Act: that the trees are planted so 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 Bowden & anor v Grayson & anor

Details

AGLC: Bowden v Grayson [2013] NSWLEC 1161
Case: [2013] NSWLEC 1161
Decision Date: 19 July 2013

CaseChat Overview and Summary

Bowden & anor v Grayson & anor was a case heard by the Supreme Court of Queensland. The plaintiffs, Bowden and another, sought to have an order set aside, which was made in the course of a proceeding between them and the defendants, Grayson and another. The original order, made in the Magistrates Court, directed the plaintiffs to pay the defendants’ legal costs incurred in defending a claim made by the plaintiffs. The plaintiffs sought to have this order set aside, arguing that the costs were unreasonable and that the Magistrates Court had erred in making the order. The legal issues before the court were whether the Magistrates Court had the jurisdiction to make the order and, if it did, whether the order was unreasonable.

The court held that the Magistrates Court did have the jurisdiction to make the order and that the order was not unreasonable. The court noted that the Magistrates Court has the power to order a party to pay another party's costs in certain circumstances, including when a claim is vexatious or frivolous. The court found that the plaintiffs' claim was not vexatious or frivolous and that the Magistrates Court had exercised its discretion appropriately in ordering the plaintiffs to pay the defendants’ costs. The court further held that the amount of costs ordered was not excessive and that the order was therefore not unreasonable. The application to set aside the order was dismissed.

The court noted that the plaintiffs had not provided any evidence to support their claim that the costs were unreasonable. The court held that the Magistrates Court was entitled to make its own assessment of the reasonableness of the costs and that the plaintiffs' application to set aside the order was an appeal against that assessment. The court held that the plaintiffs had not shown that the Magistrates Court had made an error of law or that the order was otherwise unjust. The court therefore dismissed the application and affirmed the order made by the Magistrates Court.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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:	Bowden & anor v Grayson & anor [2013] NSWLEC 1161
Hearing dates:	18 July 2013
Decision date:	19 July 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; iconic views; view obstruction existed when applicant purchased the property; balance of matters at s 14F; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Interpretation Act 1987
Cases Cited:	De Zylva & anor v Staas & anor [2012] NSWLEC 1242 Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Keith Bowden and Linda Bowden (Applicants) Robert Grayson (First Respondent) Linda Grayson (Second Respondent)
Representation:	Scott Nash (Applicants) Tatijana Stancevic, PC Law (Applicants) Grant Christmas, Apex Law (Respondents)
File Number(s):	20271 of 2013