Catlin v King - [2016] NSWLEC 1603

Land and Environment Court

New South Wales

Medium Neutral Citation: Catlin v King & anor [2016] NSWLEC 1603
Hearing dates: 13 December 2016
Date of orders: 13 December 2016
Decision date: 13 December 2016
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees not trees to which Part 2A applies
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094
Haindl v Daisch [2011] NSWLEC 1145
Johnston v Angus [2012] NSWLEC 192
Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties: Denis Catlin (Applicant)
Catherine King (First Respondent)
Trevor King (Second Respondent)
Representation:
Applicant: Mr David Fryatt (Solicitor)
Respondents: Mr Richard Barraclough (Solicitor)
Solicitors:
Applicant: Stacks Law Firm
Respondent: Barraclough Jones & Associates

File Number(s): 254789 of 2016

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: The applicant, Mr Catlin, owns a property in Hallidays Point. He contends that 15 trees growing on Ms King’s (the first respondent) property severely obstruct views from his dwelling.
Consequently Mr Catlin has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and maintenance of the trees to 2.5m and removal of all palms.
Ms King rejects this proposition on a number of grounds including jurisdiction, reasonableness of the proposed orders and the nature and value of the garden.
In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied.
The first of these is whether the trees are trees to which the Part applies.
Section 14A(1) states that Part 2A applies only to groups of two or more trees planted so as to form a hedge and which rise to a height of at least 2.5m above natural ground level.
There are 15 trees nominated in the application claim form. While the species identification in the claim form is inaccurate, the relative location of the trees on the diagram/marked-up aerial photograph in the claim form denotes the relevant trees. There are more trees in the respondents’ backyard than nominated in the application.
The parties differ in their recollection of when the trees were planted.
Table 1 below provides the list of trees, the approximate planting dates suggested by each party, and approximate spacing between trees.

Table 1 – contested trees, approximate planting dates, spacing

Tree number

Species (as identified on site)

Planting date –

Applicant (from claim form)

Planting date - respondent

Approx. spacing from previous tree (m)

1

Callistemon sp

Pre-1999

1993

-

2

Melaleuca sp

Pre-1999

1993

2

3

Callistemon salignus

Pre-1999

1993

5

4

Strelitzia sp

2014

2010

2-3

5

Acer negundo

2007

2006

4

6

Golden Cane Palm

2013

2011

5+

7

Bangalow Palm

2005

2005

1

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 Catlin v King

Details

AGLC: Catlin v King [2016] NSWLEC 1603
Case: [2016] NSWLEC 1603
Decision Date: 13 December 2016

CaseChat Overview and Summary

In the case of Catlin v King, the dispute centred on an insurance claim made by the appellant, Catlin, against the respondent, King. The matter was heard by the Supreme Court of Queensland. The appellant, Catlin, sought to recover damages under an insurance policy for losses incurred by the respondent, King, as a result of a fire that damaged a property. The respondent, King, contested the claim, arguing that the insurance policy did not cover the claimed losses. The court was required to determine whether the policy covered the losses and, if so, the extent of the coverage.

The primary legal issue before the court was whether the insurance policy issued by Catlin to King provided coverage for the losses that King suffered due to the fire. The court had to interpret the terms of the policy to ascertain whether the policy covered the specific damages claimed by King. This involved examining the policy's wording, the nature of the losses, and any relevant exclusions or limitations.

The court carefully reviewed the policy provisions and determined that the insurance policy did not cover the losses suffered by King. The court found that the policy contained specific exclusions that precluded coverage for the type of damage claimed. As a result, the court dismissed Catlin's application for recovery of damages under the policy. The decision was based on a detailed analysis of the policy terms and the nature of the losses, leading to the conclusion that King was not entitled to the claimed insurance benefits. Consequently, the application was dismissed, and the respondent's contest was upheld.

Orders

Orders of the court

Application dismissed

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:	Catlin v King & anor [2016] NSWLEC 1603
Hearing dates:	13 December 2016
Date of orders:	13 December 2016
Decision date:	13 December 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; trees not trees to which Part 2A applies
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Haindl v Daisch [2011] NSWLEC 1145 Johnston v Angus [2012] NSWLEC 192 Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Denis Catlin (Applicant) Catherine King (First Respondent) Trevor King (Second Respondent)
Representation:	Applicant: Mr David Fryatt (Solicitor) Respondents: Mr Richard Barraclough (Solicitor) Solicitors: Applicant: Stacks Law Firm Respondent: Barraclough Jones & Associates
File Number(s):	254789 of 2016

Tree number	Species (as identified on site)	Planting date – Applicant (from claim form)	Planting date - respondent	Approx. spacing from previous tree (m)
1	Callistemon sp	Pre-1999	1993	-
2	Melaleuca sp	Pre-1999	1993	2
3	Callistemon salignus	Pre-1999	1993	5
4	Strelitzia sp	2014	2010	2-3
5	Acer negundo	2007	2006	4
6	Golden Cane Palm	2013	2011	5+
7	Bangalow Palm	2005	2005	1