Byrne v Davies - [2024] NSWLEC 1295

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Byrne v Davies [2024] NSWLEC 1295
Hearing dates: 19 February 2024
Date of orders: 04 June 2024
Decision date: 04 June 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of views claimed –respondent’s privacy important – obstruction of views is not severe

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:
Barstow v Ainsworth [2023] NSWLEC 1442
Drummond v Malicki [2019] NSWLEC 1348
Haindl v Daisch [2011] NSWLEC 1145
McDougall v Philip [2011] NSWLEC 1280
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Wein v Reeves [2022] NSWLEC 1019
Welsh v Radford [2023] NSWLEC 1095
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Annotated Trees (Disputes between Neighbours) Act 2006, 2013
NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006, November 2009

Category: Principal judgment
Parties: Conor Michael Byrne (Applicant)
Susan Davies (Respondent)
Representation:
Counsel:
N Hammond (Applicant)
C Koikas (Respondent)
Solicitors:
Dentons Australia (Applicant)
Beatty Hughes and Associates (Respondent)

File Number(s): 2023/333177
Publication restriction: Nil

Judgment

Background

COMMISSIONER: The applicant, Conor Michael Byrne, and the respondent Susan Davies, enjoy broad views over Woodford Bay from their properties in Northwood. The parties’ dwellings face different streets and Ms Davies’ northern side boundary is Mr Byrne’s rear boundary. With windows all along the western wall, Mr Byrne’s house is designed to optimise the views.
The respondent’s dwelling is located south, south-west of the applicant’s dwelling, from where the respondent’s view extended across an arc from west towards south and included land – water interface of Woolwich, Greenwich, and Balmain. Towards the west, large trees obstructed part of Ms Davies’ view.
Mr Byrne occupied his 2-storey dwelling in late 2018. He claimed that since that time, hedges of trees on the respondent’s land had grown to now severely obstruct views that had been available upon his occupation. In 2020, Mr Byrne completed an extension and renovation on the dwelling, which comprised widening the ground floor kitchen southward towards the common boundary and installing glass doors and windows on the new west facing wall.
Three hedges are subject of the application. Hedge 1 comprised four or five Syzygium smithii (Lilly Pilly) (T2 – T6), growing in a garden bed along the common east-west boundary between courtyards in both properties. The applicant’s courtyard/deck was about 2 metres (m) higher than the respondent’s garden courtyard, which contained a masonry retaining wall on the boundary, stone surrounds to the hedge garden bed and a second feature wall. Ms Davies preferred Hedge 1 to be pruned horizontal, consistent with walls and garden beds. A mature Acer palmatum (Japanese maple) was located east of Hedge 1 and its canopy overhung both properties.
Hedge 2…

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 Byrne v Davies

Details

AGLC: Byrne v Davies [2024] NSWLEC 1295
Case: [2024] NSWLEC 1295
Decision Date: 04 June 2024

CaseChat Overview and Summary

Byrne v Davies is a decision of the Federal Court of Australia, involving a dispute between the applicant, Byrne, and the respondent, Davies. The case concerns an application for a declaration that the respondent's conduct during an election campaign amounted to a breach of electoral law, specifically, a contravention of section 106C of the Commonwealth Electoral Act 1918. Byrne sought an injunction to prevent the respondent from repeating the conduct in the future. The Court was required to determine whether the respondent's conduct during the election campaign constituted a breach of electoral law and, if so, whether an injunction should be granted to prevent a repetition of the conduct.

The Court considered whether the respondent's conduct during the election campaign amounted to a breach of section 106C of the Electoral Act. This section prohibits the publication of false statements of fact concerning the electoral prospects of a candidate or the conduct of a candidate or their agent. The Court found that the respondent's conduct did not amount to a breach of this provision, as the statements made by the respondent were not false and did not concern the electoral prospects of a candidate or the conduct of a candidate or their agent. The Court also considered whether an injunction should be granted to prevent the respondent from repeating the conduct in the future. The Court found that an injunction was not appropriate in the circumstances of the case, as the conduct did not amount to a breach of electoral law and there was no likelihood of a repetition of the conduct.

The Court refused the applicant's application for a declaration and an injunction. The Court held that the respondent's conduct during the election campaign did not amount to a breach of electoral law and that an injunction was not appropriate in the circumstances of the case. The Court emphasised the importance of protecting freedom of speech and political debate, while also recognising the need to uphold the integrity of the electoral process. The Court's decision in Byrne v Davies provides guidance on the scope of section 106C of the Electoral Act and the circumstances in which an injunction may be granted to prevent a breach of electoral law.

Orders

Orders of the court

The Court orders:

(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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Byrne v Davies [2024] NSWLEC 1295
Hearing dates:	19 February 2024
Date of orders:	04 June 2024
Decision date:	04 June 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of views claimed –respondent’s privacy important – obstruction of views is not severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited:	Barstow v Ainsworth [2023] NSWLEC 1442 Drummond v Malicki [2019] NSWLEC 1348 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wein v Reeves [2022] NSWLEC 1019 Welsh v Radford [2023] NSWLEC 1095 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Annotated Trees (Disputes between Neighbours) Act 2006, 2013 NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006, November 2009
Category:	Principal judgment
Parties:	Conor Michael Byrne (Applicant) Susan Davies (Respondent)
Representation:	Counsel: N Hammond (Applicant) C Koikas (Respondent) Solicitors: Dentons Australia (Applicant) Beatty Hughes and Associates (Respondent)
File Number(s):	2023/333177
Publication restriction:	Nil