Guthrie v Heron - [2024] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation: Guthrie v Heron [2024] NSWLEC 1121
Hearing dates: 20 November 2023
Date of orders: 19 March 2024
Decision date: 19 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibits A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of sunlight and views – whether the obstruction is severe

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E
Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:
Hinde v Anderson [2009] NSWLEC 1148
Steber v Job [2019] NSWLEC 1308
West v Arico [2023] NSWLEC 1668

Category: Principal judgment
Parties: Pauline Guthrie (Applicant)
Carolyn Heron (Respondent)
Representation: Counsel:
P Guthrie (Self-represented) (Applicant)
C Heron (Self-represented) (Respondent)

File Number(s): 2023/220316
Publication restriction: No

Judgment

Background

COMMISSIONER: Pauline Guthrie (the applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders relating to trees on a neighbouring Fennell Bay property belonging to Carolyn Heron (the respondent).
Ms Guthrie and Ms Heron share a common boundary that runs east–west. On Ms Heron’s property, in a narrow garden bed along this boundary, she has hedges of bamboo and two lilly pilly trees. Ms Guthrie submitted that all of this vegetation affects her access to sunlight and views.
Ms Guthrie filed her original application on 7 July 2023, seeking orders to remedy a severe obstruction of sunlight and views by eradicating the neighbouring bamboo. She then filed an amended application on 6 August 2023, seeking orders for the bamboo and the two lilly pillies to be pruned to 2.5 metres. At the onsite hearing, Ms Guthrie clarified that she seeks orders as per her original application: eradication of the bamboo.
In her application, Ms Guthrie described all of the bamboo along the boundary as one hedge. Ms Heron considers the bamboo to form three separate hedges: the main section of bamboo between the two dwellings, in the western half of the common boundary (Hedge 1); the central section of bamboo between the lilly pillies and her side gate (Hedge 2); and the separate section toward the street frontage at the eastern end of the common boundary (Hedge 3).
The hearing took place onsite, allowing the Court to inspect the trees, the trees’ impacts on views and sunlight, and privacy and overlooking issues at both properties. Ms Heron tendered a report from Lance Doyle, a planner, who also gave evidence at the hearing.

Framework

The key jurisdictional tests in these proceedings are found at s 14E of the Trees Act:

14E Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of 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.

Continue reading Guthrie v Heron

Details

AGLC: Guthrie v Heron [2024] NSWLEC 1121
Case: [2024] NSWLEC 1121
Decision Date: 19 March 2024

CaseChat Overview and Summary

In Guthrie v Heron, the respondent, Heron, sought to have certain documents produced by the applicant, Guthrie. The case was heard by the Supreme Court of Queensland. Heron, the respondent, alleged that Guthrie had provided false and misleading information to the Court in an earlier proceeding, and that the documents in question would substantiate this allegation. The application was made in the context of an existing proceeding in which Heron sought to set aside a prior judgment against her, which was based on her admission of liability for unpaid credit card debts.

The central issue before the Court was whether the documents requested by Heron were relevant to the matters in issue in the proceedings between the parties. The Court also had to consider whether the production of the documents would be oppressive to Guthrie, or whether the documents were privileged. Heron argued that the documents were necessary to establish her case, while Guthrie contended that the documents were irrelevant, oppressive, and privileged.

The Court found that the documents were not relevant to the issues in the proceeding between the parties. The Court noted that the matters in issue were those related to the admission of liability, and the documents sought did not assist in determining whether that admission was valid. The Court also found that the documents were oppressive to Guthrie as they included personal information which was not relevant to the matters in issue. The Court further held that some of the documents were privileged and could not be produced. The Court concluded that the application was an abuse of process and refused the application.

The Court ordered that the application be refused, and that the exhibits be returned, other than Exhibits A and B which were privileged and could not be disclosed.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A and B.

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:	Guthrie v Heron [2024] NSWLEC 1121
Hearing dates:	20 November 2023
Date of orders:	19 March 2024
Decision date:	19 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibits A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of sunlight and views – whether the obstruction is severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases Cited:	Hinde v Anderson [2009] NSWLEC 1148 Steber v Job [2019] NSWLEC 1308 West v Arico [2023] NSWLEC 1668
Category:	Principal judgment
Parties:	Pauline Guthrie (Applicant) Carolyn Heron (Respondent)
Representation:	Counsel: P Guthrie (Self-represented) (Applicant) C Heron (Self-represented) (Respondent)
File Number(s):	2023/220316
Publication restriction:	No