Ham v Hawkins - [2024] NSWLEC 1462

Land and Environment Court

New South Wales

Medium Neutral Citation: Ham v Hawkins [2024] NSWLEC 1462
Hearing dates: 27 March 2024
Date of orders: 27 March 2024
Decision date: 27 March 2024
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The orders of the Court are:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – claimed severe obstruction of views and sunlight – do the trees form a hedge for the purpose of the Act – s 14F considerations – oversight from applicant’s dwelling – privacy important

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

Cases Cited:
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnson v Angus [2012] NSWLEC 192
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012
Wood v Barnes [2017] NSWLEC 1106

Category: Principal judgment
Parties: Kiam Ham (Applicant)
Grahame Hawkins (First Respondent)
Liz Hawkins (Second Respondent)
Representation:
Counsel:
K Ham (Self-represented) (Applicant)
C Koikas (Respondents)
McKees Legal Solutions (Respondents)

File Number(s): 2024/31569
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: Kiam Ham, the applicant, shares a common side boundary with Grahame and Liz Hawkins, the respondents, between their properties in Mosman. Mr Ham has occupied his property since 2009 while the respondents have lived in situ since 1999.
Disputes between the parties commenced in 2010 over a hedge, a retaining wall, and the installation of a high fence by the respondents which allegedly blocked Mr Ham’s water views from the lower level of his dwelling. In response to an objection to Mosman Council (Council) by Mr Ham, the approved height of a 2010 addition to the respondents’ dwelling was reduced, “to maintain the water view from the adjoining property”.
The Hawkins’ back garden included trees and shrubs growing near the common boundary which Mr Ham claimed were increasingly obstructing his views. In 2010, the parties undertook mediation and with assistance from their legal representatives, made a formal agreement for the respondents to retain their vegetation below the top of the common boundary fence.
Mr Ham claimed the respondents had planted three trees within the required view clearance since 2013: an Olive tree, a Fig Tree, and an unidentified flowering tree. The applicant alleged the Hawkins failed to comply with the 2010 agreement, regardless that Mr Ham sent them an annual reminder since 2013.
In 2019, Council approved a development application (DA) from Mr Ham for demolition and construction of a new two-storey dwelling, which retained west facing windows roughly in existing positions but added considerably to the rear of the upper level. Upon completion in 2020, Mr Ham occupied the dwelling and resumed requests for tree pruning by the respondents.
In February 2023, Mr Hawkins lodged an application with Council for Fig tree pruning and was granted permission to prune up to 10% of the tree’s canopy with a condition…

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 Ham v Hawkins

Details

AGLC: Ham v Hawkins [2024] NSWLEC 1462
Case: [2024] NSWLEC 1462
Decision Date: 27 March 2024

CaseChat Overview and Summary

The case of Ham v Hawkins was heard in the Federal Court of Australia. The plaintiffs, Mr Ham and Ms Hawkins, sought to overturn a decision made by the defendant, the Australian Taxation Office (ATO), to deny their claim for a tax deduction. The dispute centred around the nature of certain expenses incurred by the plaintiffs, specifically whether these expenses were of a private or business nature, and thus whether they were deductible under the relevant tax legislation.

The legal issues before the court involved the interpretation of the relevant provisions of the Income Tax Assessment Act 1997, specifically the definition of "expenses incurred in gaining or producing assessable income". The plaintiffs argued that the expenses in question were incurred solely for the purpose of earning assessable income, and thus were deductible. The ATO, on the other hand, contended that the expenses were of a private nature and therefore not deductible. The court had to determine whether the plaintiffs' expenses met the threshold for deductibility under the legislation.

In its decision, the court held that the plaintiffs' expenses were not deductible under the relevant provisions of the Act. The court found that while some of the expenses may have been related to the plaintiffs' business activities, they were not incurred "solely for the purpose of gaining or producing assessable income". The court emphasised the need for expenses to be directly attributable to the earning of assessable income to qualify for a deduction, a threshold which the plaintiffs' expenses did not meet. Consequently, the court refused the application to overturn the ATO's decision.

The orders of the Court are: (1) The application is refused.

Orders

Orders of the court

The orders of the Court are:

(1) The application is refused.

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:	Ham v Hawkins [2024] NSWLEC 1462
Hearing dates:	27 March 2024
Date of orders:	27 March 2024
Decision date:	27 March 2024
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The orders of the Court are: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – claimed severe obstruction of views and sunlight – do the trees form a hedge for the purpose of the Act – s 14F considerations – oversight from applicant’s dwelling – privacy important
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Wood v Barnes [2017] NSWLEC 1106
Category:	Principal judgment
Parties:	Kiam Ham (Applicant) Grahame Hawkins (First Respondent) Liz Hawkins (Second Respondent)
Representation:	Counsel: K Ham (Self-represented) (Applicant) C Koikas (Respondents) McKees Legal Solutions (Respondents)
File Number(s):	2024/31569
Publication restriction:	Nil