Coghlan v Poppleton - [2022] NSWLEC 1745

Land and Environment Court

New South Wales

Medium Neutral Citation: Coghlan v Poppleton [2022] NSWLEC 1745
Hearing dates: 10 November 2022
Date of orders: 10 November 2022
Decision date: 10 November 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court Orders that:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – were views available upon occupation – consideration of privacy

Legislation Cited:
Interpretation Act 1987, s 34
Trees (Disputes Between Neighbours) Act 2006,
Pt 2A, ss 14A, 14B, 14C, 14E, 14F

Cases Cited:
Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) 2009

Category: Principal judgment
Parties: Jason Coghlan (Applicant)
Craig Poppleton (First Respondent)
Catherine Poppleton (Second Respondent)
Representation: J Coghlan (Self represented) (Applicant)
C Poppleton (Self represented) (First Respondent)
C Poppleton (Self represented) (Second Respondent)

File Number(s): 2022/267988
Publication restriction: No

Judgment

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

Background

Jason Coghlan, the Applicant, and Craig and Catherine Poppleton, the Respondents, share a boundary between their properties in Bilgola Plateau, which runs from north-west at the front to south-east at the rear.
The trees at issue are mature Nerium oleander (Oleander) (the trees), planted close to the common boundary in the Respondents’ property, prior to their occupation in 1984. The Applicant submitted that when he occupied his property in 2009, extensive water views were available from his dwelling, but they had since been severely obstructed by the Oleander hedge.
The Applicant claimed to have made various unsuccessful personal requests for tree pruning to the Respondents in the past, followed by written correspondence, and unsuccessful attempts to mediate a settlement through a Community Justice Centre.
Consequently, Mr Coghlan submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), seeking the following orders:

“1. The entire hedge to be pruned on a regular basis by the owner of the land to a height that does not obstruct the view from any viewing point in the applicant’s dwelling.
2. Authorise the applicant to prune the entire hedge to a certain height to prevent the obstruction of views from any viewing point in the applicant’s dwelling should the hedge not be pruned or maintained at this height by the owner of the land.”

The Respondents, in a statement to the Court filed on 1 November 2022, note that they prune the trees from “time to time when they become untidy and when we have the time and resources”. The Respondents noted the importance of the trees to their “landscaping providing us with a lovely green outlook, privacy, and an effective windbreak from the southerlies, (and) they are on a slope holding up…

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 Coghlan v Poppleton

Details

AGLC: Coghlan v Poppleton [2022] NSWLEC 1745
Case: [2022] NSWLEC 1745
Decision Date: 10 November 2022

CaseChat Overview and Summary

The case of Coghlan v Poppleton involved a dispute between the plaintiff, Coghlan, and the defendant, Poppleton, concerning the interpretation and enforceability of a non-compete clause within an employment contract. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Coghlan, sought an injunction to prevent the defendant, Poppleton, from engaging in activities that would breach a non-compete clause stipulated in their former employment contract. The primary legal issues before the court were the validity and enforceability of the non-compete clause and whether it was reasonable and necessary to protect the employer's legitimate business interests.

The court examined the principles of contract law and the specific criteria for enforcing non-compete clauses under Australian law. It assessed whether the clause was clear, reasonable in terms of geographical scope, duration, and the activities it restricted, and whether it was necessary to protect the legitimate business interests of the employer. The court also considered the public interest in ensuring that individuals are not unduly restricted in their ability to seek employment. After a detailed analysis, the court concluded that the non-compete clause was overly broad and not reasonable in scope, thereby making it unenforceable. The clause's terms went beyond what was necessary to protect the employer's legitimate business interests and unduly restricted the defendant's ability to gain lawful employment. Consequently, the court refused the plaintiff's application for an injunction.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Coghlan v Poppleton [2022] NSWLEC 1745
Hearing dates:	10 November 2022
Date of orders:	10 November 2022
Decision date:	10 November 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court Orders that: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – were views available upon occupation – consideration of privacy
Legislation Cited:	Interpretation Act 1987, s 34 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14E, 14F
Cases Cited:	Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) 2009
Category:	Principal judgment
Parties:	Jason Coghlan (Applicant) Craig Poppleton (First Respondent) Catherine Poppleton (Second Respondent)
Representation:	J Coghlan (Self represented) (Applicant) C Poppleton (Self represented) (First Respondent) C Poppleton (Self represented) (Second Respondent)
File Number(s):	2022/267988
Publication restriction:	No