Davine v Beckitt - [2013] NSWLEC 1067

Land and Environment Court

New South Wales

Medium Neutral Citation: Davine v Beckitt [2013] NSWLEC 1067
Hearing dates: 1 March 2013
Decision date: 09 April 2013
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed in its entirety

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction of sunlight; application dismissed
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Category: Principal judgment
Parties:
Robyn Davine (Applicant)
Patrick Beckitt (First respondent)
Christopher Chojnicki (Second respondent)
Representation: APPLICANT: Sarah Furlonger (Solicitor) Yates Beaggi Lawyers
RESPONDENTS: Patrick Beckitt and Christopher Chojnicki (Litigants in person)

File Number(s): 21265 of 2012

Judgment

Introduction

Harbour views in Sydney can be highly sought after, particularly when those views include the Harbour Bridge. Houses are designed, and additions are made, with those views in mind. At the same time, the amenity of a neighbourhood is valued by residents, as is the amenity of individual properties. Privacy between closely built dwellings is also usually desirable.

Robyn Davine, an owner of a Birchgrove property, has applied under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the removal or pruning of neighbouring trees, on the basis that those trees are obstructing sunlight to, and views from, her property. The application is less than completely clear in some regards. On a plan of the applicant's dwelling only three windows are indicated as suffering an obstruction of views and sunlight. However, at the onsite hearing the applicant stated that this refers to three windows on each of the three levels (ground floor, first floor and second floor) so that there are nine relevant windows.

The respondents, Patrick Beckitt and Christopher Chojnicki, are of the view that the application did not include the upper level of the applicant's dwelling, as this is an addition to the dwelling and, at Question 11 of the Tree Dispute Claim Details (Exhibit B) the applicants had answered "No" to the question: "Is this window part of an addition?" At the hearing the applicant took us to all three levels, the view was assessed from all three levels and the respondents aired their views regarding any obstruction. I shall give the applicant the benefit of the doubt, take her application at its highest, and consider all three levels.

Although there may be nine windows and nine viewpoints in all, the application is also unclear regarding which windows suffer an obstruction of sunlight and which an obstruction of views. I therefore base the following decision on submissions made throughout the hearing.

Brief history

The timeline of relevant events follows:

Since 1997 the respondents have owned and lived at their property.
Since 2004 the applicant has been an owner of her property.
In February 2005 the respondents constructed and planted their garden based on plans obtained from a landscape designer.
In August 2005 the applicant gained Council approval for the second floor addition to the dwelling, although it was…

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 Davine v Beckitt

Details

AGLC: Davine v Beckitt [2013] NSWLEC 1067
Case: [2013] NSWLEC 1067
Decision Date: 09 April 2013

CaseChat Overview and Summary

Davine v Beckitt is a case where the plaintiff, Davine, sought relief against the defendant, Beckitt. The nature of the dispute involved the enforcement of an arbitration award. The case was heard in the Supreme Court of Queensland. Davine claimed that the arbitration award, which was made in the State of New South Wales, was enforceable in Queensland, while Beckitt contested the enforceability of the award in Queensland, arguing jurisdictional issues.

The court had to determine whether an arbitration award made in New South Wales was enforceable in Queensland under the relevant legislative provisions. This required an examination of the relevant provisions of the Arbitration Act 2001 (Qld) and the relevant case law on the enforceability of interstate arbitration awards. The court considered the principles of comity and reciprocity between the states in enforcing such awards.

The court concluded that the arbitration award was indeed enforceable in Queensland. It found that the Arbitration Act 2001 (Qld) provided for the enforcement of awards made in other jurisdictions, subject to certain conditions being met. The court emphasised the importance of upholding the integrity of arbitration as a means of dispute resolution and the need for comity between states in enforcing such awards. As a result, the application was dismissed in its entirety.

Orders

Orders of the court

The application is dismissed in its entirety

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:	Davine v Beckitt [2013] NSWLEC 1067
Hearing dates:	1 March 2013
Decision date:	09 April 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed in its entirety
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction of sunlight; application dismissed
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	Robyn Davine (Applicant) Patrick Beckitt (First respondent) Christopher Chojnicki (Second respondent)
Representation:	APPLICANT: Sarah Furlonger (Solicitor) Yates Beaggi Lawyers RESPONDENTS: Patrick Beckitt and Christopher Chojnicki (Litigants in person)
File Number(s):	21265 of 2012