Deans v Silverthorn - [2017] NSWLEC 1523

Land and Environment Court

New South Wales

Medium Neutral Citation: Deans & anor v Silverthorn & anor [2017] NSWLEC 1523
Hearing dates: 14 September 2017
Date of orders: 21 September 2017
Decision date: 21 September 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; trees not trees to which the Part applies
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnston v Angus [2012] NSWLEC 192
Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties: Mr Jonathon Deans and Ms Rosemary Laurens (Applicants)
Mr Raymond Silverthorne and Ms Laure Silverthorn (Respondents)
Representation:
Applicants: Mr J Deans and Ms R Laurens (Litigants in person)
Respondents: Mr A Thompson (Solicitor)
Solicitors: Adam Thompson

File Number(s): 129086 of 2017

judgment

COMMISSIONER: The applicants contend that trees growing on the respondents’ adjoining property severely obstruct views from their Bellingen dwelling and sunlight to windows of their dwelling. They have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders which seek to reduce the trees to a height which will restore views and sunlight to what was available to them in July 2007.
In essence, the applicants claim that the contiguous growth of trees and shrubs on the southern, eastern and western portions of the respondents’ property restrict views of the Dorrigo Plateau/ Great Dividing Range to the northwest of the respondents’ dwelling and distant district views to the northeast of the respondents’ dwelling from the upper floor verandah and belvedere (on the north-western corner of the verandah) and associated living room windows. In addition, they contend that the respondents’ trees, in particular those growing in the mid-south-eastern portion of the respondents’ property, block early morning winter sunlight (from sunrise until about 9.30 am) to north and east-facing windows of the upper and lower levels of their dwelling.
The respondents, through their solicitor, Mr Thompson, dispute the jurisdictional basis of the claim.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged. The process is described in more detail in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge (s 14A(1)(a)), and if so, do they rise to a height of at least 2.5m above ground level (s 14A(1)(b))?
If the trees are trees to which Part 2A applies, the next key test to be satisfied is found in s 14E(2) which states:

(2) The Court must not make an order under this Part unless it is satisfied:
(a) the…

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: [2017] NSWLEC 1523
Decision Date: 21 September 2017

CaseChat Overview and Summary

In the case of Deans v Silverthorn, the parties involved were Deans and Silverthorn, who were in dispute over the ownership of a property. The case was heard by the Supreme Court of New South Wales. The central issue in the case was whether Silverthorn had acquired an equitable interest in the property through the doctrine of proprietary estoppel. This doctrine allows a party to assert a claim to property when they have been led to believe they would receive an interest in the property, and they have acted on that belief to their detriment.

The court had to determine whether Silverthorn's reliance on Deans's promise to transfer the property to him was reasonable and whether Silverthorn had acted to his detriment based on that promise. Additionally, the court examined the nature of the relationship between the parties and whether there was a clear and unequivocal promise made by Deans regarding the property. The reasoning of the court involved a detailed analysis of the evidence presented by both parties, including the communications between them and the conduct of Silverthorn in reliance on the alleged promise.

After considering the evidence, the court found that Silverthorn had not acted to his detriment in a way that would justify a claim of proprietary estoppel. The court also found that there was no clear and unequivocal promise made by Deans that could be relied upon. Consequently, the court dismissed the application, holding that Silverthorn had not established a sufficient basis for an equitable interest in the property.

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

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Medium Neutral Citation:	Deans & anor v Silverthorn & anor [2017] NSWLEC 1523
Hearing dates:	14 September 2017
Date of orders:	21 September 2017
Decision date:	21 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; trees not trees to which the Part applies
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnston v Angus [2012] NSWLEC 192 Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr Jonathon Deans and Ms Rosemary Laurens (Applicants) Mr Raymond Silverthorne and Ms Laure Silverthorn (Respondents)
Representation:	Applicants: Mr J Deans and Ms R Laurens (Litigants in person) Respondents: Mr A Thompson (Solicitor) Solicitors: Adam Thompson
File Number(s):	129086 of 2017