Dunn-Mukawa v Naylor - [2024] NSWLEC 1520

Land and Environment Court

New South Wales

Medium Neutral Citation: Dunn-Mukawa v Naylor [2024] NSWLEC 1520
Hearing dates: 21 August 2024
Date of orders: 21 August 2024
Decision date: 21 August 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The Part 2 application is refused.
(2) The Part 2A application is refused.
(3) The exhibits are returned, other than exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring hedge – not all trees are part of the hedge – obstruction of sunlight and views – whether the obstruction is severe – relevant history – balancing of interests – Pt 2A application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:
Coffs Harbour Development Control Plan 2015

Category: Principal judgment
Parties: Joanne Dunn-Mukawa (First Applicant)
Osamu Mukawa (Second Applicant)
Ron Naylor (First Respondent)
Merle Naylor (Second Respondent)
Representation: Counsel:
J Dunn-Mukawa (Self-represented) (First Applicant)
O Mukawa (Self-represented) (Second Applicant)
R Naylor (Self-represented) (First Respondent)
M Naylor (Self-represented) (Second Respondent)

File Number(s): 2024/186232
Publication restriction: No

Judgment

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

Background to the application

Each tree dispute that comes to the Court has its own particular circumstances. It can be possible to find two disputes in which the trees, or the issues around trees, sound almost identical. However, circumstances specific to each dispute may affect the weighing of reasons for and against interfering with those trees. Some factors are only understood with the benefit of a site view, which is why the Court arranges onsite hearings in tree disputes. In several cases, the Court has made orders for pruning lilly pilly hedges that, on reading the application, sound similar to the trees in these proceedings. Yet here, no orders for pruning will be made.
Joanne Dunn-Mukawa and Osamu Mukawa (the applicants) and Ron and Merle Naylor (the respondents) are neighbours in North Boambee Valley. They have a dispute over trees on the Naylors’ property. Ms Dunn-Mukawa and Mr Mukawa have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for nine trees on the Naylors’ land to be pruned and maintained at the height of the applicants’ boundary wall.
The hearing took place onsite. The applicants and respondents were self-represented. The Court observed the trees and relevant elements at both properties.

The trees

The application concerns nine trees on the Naylors’ property, all lilly pillies, including both Syzygium australe and S. floribundum. Trees 2–8 grow in a row next to the common boundary. Tree 9 is in the same alignment as trees 2–8,…

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 Dunn-Mukawa v Naylor

Details

AGLC: Dunn-Mukawa v Naylor [2024] NSWLEC 1520
Case: [2024] NSWLEC 1520
Decision Date: 21 August 2024

CaseChat Overview and Summary

The case of Dunn-Mukawa v Naylor involved a dispute between two parties, Dunn-Mukawa and Naylor. Dunn-Mukawa sought relief through two applications, one under Part 2 and another under Part 2A of a relevant Act. The court was tasked with determining whether the relief sought by Dunn-Mukawa was appropriate in the circumstances of the case. The court's decision centred on the interpretation and application of the relevant legal provisions to the facts as presented.

The legal issues that the court had to address included the validity of the applications under Parts 2 and 2A, and whether the relief sought was justified. The court had to consider the statutory requirements for each part of the Act and assess whether Dunn-Mukawa's applications met these requirements. Additionally, the court needed to evaluate the evidence and arguments presented to decide whether the relief sought was appropriate.

In its decision, the court found that the applications did not meet the statutory requirements for the relief sought. The court held that the provisions of Parts 2 and 2A were not applicable to the circumstances of the case. The court also noted that the relief sought was not justified based on the evidence and arguments presented. Consequently, the court refused both applications and ordered the exhibits to be returned, except for exhibit A.

Orders

Orders of the court

The Court orders:

(1) The Part 2 application is refused.

(2) The Part 2A application is refused.

(3) The exhibits are returned, other than exhibit A.

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:	Dunn-Mukawa v Naylor [2024] NSWLEC 1520
Hearing dates:	21 August 2024
Date of orders:	21 August 2024
Decision date:	21 August 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Part 2 application is refused. (2) The Part 2A application is refused. (3) The exhibits are returned, other than exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring hedge – not all trees are part of the hedge – obstruction of sunlight and views – whether the obstruction is severe – relevant history – balancing of interests – Pt 2A application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, Pt 2A, ss 14A, 14B, 14E, 14F
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Texts Cited:	Coffs Harbour Development Control Plan 2015
Category:	Principal judgment
Parties:	Joanne Dunn-Mukawa (First Applicant) Osamu Mukawa (Second Applicant) Ron Naylor (First Respondent) Merle Naylor (Second Respondent)
Representation:	Counsel: J Dunn-Mukawa (Self-represented) (First Applicant) O Mukawa (Self-represented) (Second Applicant) R Naylor (Self-represented) (First Respondent) M Naylor (Self-represented) (Second Respondent)
File Number(s):	2024/186232
Publication restriction:	No