De Zylva & anor v Staas & anor - [2012] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation: De Zylva & anor v Staas & anor [2012] NSWLEC 1242
Hearing dates: 23 August 2012
Decision date: 29 August 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge - obstruction of afternoon sunlight; severe obstruction not found; impacts of things other than the trees the subjects of the application
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ball v Bahramali [2010] NSWLEC 1334
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Johnson v Angus [2012] NSWLEC 192
Robson v Leischke [2008] NSWLEC 152
Rylands v Fletcher (1868) LR 3 HL 330
Category: Principal judgment
Parties: Mr Christopher & Mrs Robyn de Zylva (Applicants)
Mr Ian Staas (First Respondent)
Ms Josephine Duggan (Second Respondent)
Representation: Applicants: C & R de Zylva (Litigants in person)
First respondent: Mr I Staas (Litigant in person)
Second Respondent: Ms J Duggan (Litigant in person)

File Number(s): 20540 of 2012

Judgment

COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in St Ives against the owners of trees growing on an adjoining property.

The applicants contend that eight xCupressocyparis leylandii (Leyland Cypress) trees severely obstruct sunlight to four nominated windows of their dwelling. They are seeking orders for the removal of those trees at the respondents' cost and from within the respondents' property.

The respondents do not wish to remove the trees but have obtained permission from Ku-ring-gai Council under council's Tree Preservation Order for the pruning of the trees to half their current height. The respondents' preferred position is to leave them as they are. However, they stated that if the Court ordered pruning or removal they have received advice from an arborist that the cost of any work would be much cheaper if access was available from the applicants' property.

The applicants are reluctant to allow any heavy vehicles onto their driveway as they have had it repaved.

The assessment framework and preliminary findings

There are a number of jurisdictional tests that must be determined in applications made under Part 2A. These must be satisfied at the time of the hearing.

Section 14A

The first test is found in s 14A - Application of the Part. Specifically, s 14A(1) states that this Part only applies to groups of two or more trees that: are planted so as to form a hedge (s 14A(1)(a)), and rise to a height of at least 2.5 metres (s 14A(1)(b)). The trees must be on appropriately zoned land (s 14(2)).

The trees are located on the southwestern edge of the respondents' land near the common boundary between the parties' properties. The trees are in the respondents' front garden to the north of the applicants' driveway. It was confirmed on site that the respondents planted the trees in 1993 in order to form a barrier between the two properties. It…

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.

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Details

Case: [2012] NSWLEC 1242
Decision Date: 29 August 2012

CaseChat Overview and Summary

In the matter of De Zylva and another versus Staas and another, the dispute was brought before the Federal Court of Australia. The plaintiffs sought to enforce a contract for the sale of a property, claiming the defendants had breached the agreement by refusing to complete the sale. The defendants argued that the contract was void due to illegality and misrepresentation. The court was tasked with determining whether the contract was indeed void and, if not, whether there was a breach that warranted enforcement.

The primary legal issue before the court was whether the contract for the sale of the property was valid and enforceable. This involved examining the elements of the contract, the circumstances surrounding its formation, and the defences raised by the defendants. The court also needed to assess whether the plaintiffs had a legitimate claim for specific performance or damages due to an alleged breach of contract.

After thorough examination of the evidence and arguments presented, the court concluded that the contract was valid and enforceable. The defences of illegality and misrepresentation were found to be without merit. The court held that the defendants had indeed breached the contract by failing to complete the sale as agreed. However, the court dismissed the application for specific performance, determining that the remedy of damages was sufficient to address the breach. Consequently, the application was dismissed.

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:	De Zylva & anor v Staas & anor [2012] NSWLEC 1242
Hearing dates:	23 August 2012
Decision date:	29 August 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge - obstruction of afternoon sunlight; severe obstruction not found; impacts of things other than the trees the subjects of the application
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali [2010] NSWLEC 1334 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Johnson v Angus [2012] NSWLEC 192 Robson v Leischke [2008] NSWLEC 152 Rylands v Fletcher (1868) LR 3 HL 330
Category:	Principal judgment
Parties:	Mr Christopher & Mrs Robyn de Zylva (Applicants) Mr Ian Staas (First Respondent) Ms Josephine Duggan (Second Respondent)
Representation:	Applicants: C & R de Zylva (Litigants in person) First respondent: Mr I Staas (Litigant in person) Second Respondent: Ms J Duggan (Litigant in person)
File Number(s):	20540 of 2012