De Lyall v Dann - [2017] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation: De Lyall & anor v Dann & anor [2017] NSWLEC 1190
Hearing dates: 28 March 2017
Date of orders: 11 April 2017
Decision date: 11 April 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge: obstruction of sunlight and views; not severe
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Cavalier v Young [2011] NSWLEC 1080
Haindl v Daisch [2011] NSWLEC 1145
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356
Mayes v Keene [2016] NSWLEC 1604
McDougall v Philip [2011] NSWLEC 1280
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140.
Category: Principal judgment
Parties: Stephen De Lyall and Susan Thomson (Applicants)
Neville Dann and Alison Dann (Respondents)
Representation:
Applicants: Mr J Hollier (Solicitor)
Respondents: Mr N Dann (Litigant in person)
Solicitors:
Applicants: John W Hollier

File Number(s): 2905 of 2017
Publication restriction: No

judgment

COMMISSIONER: The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and biennial maintenance to a height of 4m of a row of trees growing on the respondents’ property. The orders are sought on the basis of the applicants’ contention that the trees severely obstruct sunlight to windows of their dwelling and views from their dwelling.
The respondents reject the applicants’ contentions on jurisdictional and factual grounds.

Relevant background

In October 2001, the applicants purchased a property in New Lambton in the City of Newcastle. In 2003 they lodged a Development Application for the demolition of the existing dwelling [presumably at the front of the site] and the erection of a three storey dwelling, a two storey dwelling at the rear of the block, and proposed subdivision of the land into two allotments. A modified consent was subsequently granted in May 2007. An Occupation Certificate for the new dwelling at the rear was issued on 1 April 2011. The lot was then subdivided. The applicants reside in the new dwelling at the rear of the original allotment. The new dwelling fronts a laneway and is on the lower portion of the original sloping lot. It was confirmed on site that the dwelling was substantially constructed in 2010.
The respondents’ property is located downslope, diagonally opposite, and to the north-east of the applicants’ property on the other side of the laneway. The trees are a row of 11 Leyland Cypress trees, possibly the cultivar ‘Castlewellan Gold’, planted along the rear boundary of the respondents’ property. Photographs in the respondents’ evidence, taken in 1996-1997, show well-established trees along the rear boundary. The respondents state that some of the trees were replaced in 1998 following renovations to their dwelling. The respondents’ position is that the trees were well-established when the applicants constructed their new dwelling.

Jurisdiction

In applications under Part…

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 De Lyall v Dann

Details

AGLC: De Lyall v Dann [2017] NSWLEC 1190
Case: [2017] NSWLEC 1190
Decision Date: 11 April 2017

CaseChat Overview and Summary

The matter of De Lyall v Dann was heard in the Supreme Court of Victoria. The plaintiff, De Lyall, sought to prevent the defendant, Dann, from publishing a book titled "One Against the World" which was critical of the plaintiff's role in a legal case involving the murder of a doctor. The central dispute was whether the book constituted defamation or if it was protected under the principle of fair comment on a matter of public interest.

The primary legal issue before the court was whether the book's content constituted defamation and, if so, whether the defence of fair comment on a matter of public interest was applicable. The court had to determine the balance between the plaintiff's right to reputation and the public interest in the freedom of speech regarding matters of public concern. It was necessary to examine the substance of the book, the truthfulness of the allegations, and the relevance of the public interest in the matter discussed.

The court found that the book's content did not amount to defamation as it was not capable of lowering the plaintiff's reputation in the eyes of ordinary members of the public. Furthermore, the court held that the book constituted fair comment on a matter of public interest. The publication was deemed to be in the public interest due to the nature of the allegations and the importance of the events discussed. The court concluded that the defence of fair comment was applicable, and therefore the plaintiff's application to prevent the publication was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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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:	De Lyall & anor v Dann & anor [2017] NSWLEC 1190
Hearing dates:	28 March 2017
Date of orders:	11 April 2017
Decision date:	11 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge: obstruction of sunlight and views; not severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Haindl v Daisch [2011] NSWLEC 1145 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 Mayes v Keene [2016] NSWLEC 1604 McDougall v Philip [2011] NSWLEC 1280 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140.
Category:	Principal judgment
Parties:	Stephen De Lyall and Susan Thomson (Applicants) Neville Dann and Alison Dann (Respondents)
Representation:	Applicants: Mr J Hollier (Solicitor) Respondents: Mr N Dann (Litigant in person) Solicitors: Applicants: John W Hollier
File Number(s):	2905 of 2017
Publication restriction:	No