Hellier v Paver - [2015] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation: Hellier & anor v Paver & anor [2015] NSWLEC 1235
Hearing dates: 24 June 2015
Date of orders: 24 June 2015
Decision date: 24 June 2015
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed

Catchwords: Trees (Disputes Between Neighbours); hedge; obstruction of views; some trees not planted so as to form a hedge; obstruction not severe; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Johnson v Angus [2012] NSWLEC 192
Liddell v Jones [2014] NSWLEC 1183
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties: Peter John Hellier (First Applicant)
Narelle Ann Hellier (Second Applicant)
Graham Kent Paver (First Respondent)
Jill Eileen Paver (Second Respondent)
Representation:
Counsel:
David Newhouse, solicitor (Applicants)
Janine Wilson, solicitor (Respondents)
Solicitors:
Newhouse & Arnold Solicitors (Applicants)
Baker Love Lawyers (Respondents)

File Number(s): 20237 of 2015

Judgment

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

Background

Properties facing the lake at Coal Point enjoy peaceful surrounds and water views. Mr and Mrs Paver (‘the respondents’) bought and occupied one of these properties 27 years ago. Mr and Mrs Hellier (‘the applicants’) bought and occupied the adjoining property in 1996. Shortly before the Helliers moved in the Pavers planted a row of trees near the common boundary. Since then they have undertaken further plantings to consolidate this hedge (‘Hedge 1’), which now extends for a considerable length and contains two species: Lilly Pilly and Photinia. Two trees existed in the vicinity of this hedge prior to the first planting - a Lilly Pilly (‘Tree 1’) and a Viburnum (‘Tree 11’). Closer to the lake is a group of three Cotoneasters that the Helliers say forms another hedge (‘Hedge 2’).
The Pavers planted the trees in Hedge 1 for privacy in their rear garden. They say that they did not plant the larger Lilly Pilly or the Viburnum and that these trees are not part of the hedge. They also say that they did not plant the Cotoneasters, but value the protection they provide from wind.
The Helliers say they had sweeping 120-degree views of the lake from their dwelling when they first moved in; views that are now restricted to 40- or 50-degree views. They say the view loss is caused by trees in both hedges, primarily those in Hedge 1, and to a lesser extent by the three Cotoneasters. Pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) they have applied for the trees to be pruned on an annual basis to a height of 2 metres, which they say will restore their views while maintaining the Pavers’ privacy. They say the Viburnum was present when they moved in but suggest that the Pavers planted it. They say the Pavers have planted the hedge trees close to Tree 11, that its foliage is similar to the hedge trees, and that it therefore forms…

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 Hellier v Paver

Details

AGLC: Hellier v Paver [2015] NSWLEC 1235
Case: [2015] NSWLEC 1235
Decision Date: 24 June 2015

CaseChat Overview and Summary

In the case of Hellier v Paver, the dispute arose between the plaintiff, Hellier, and the defendant, Paver. Hellier sought a declaration that Paver had engaged in misleading or deceptive conduct and that the conduct constituted an unfair practice under the Australian Consumer Law. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether Paver's conduct amounted to misleading or deceptive conduct and unfair practice under the Australian Consumer Law. The court also considered whether the conduct was misleading in a material sense.

The court carefully examined the evidence presented and the applicable legal principles. The plaintiff argued that Paver's conduct was misleading in that it created an impression that was not in accordance with the facts. The court analysed whether the conduct was misleading in a material sense, which means that it could influence a consumer's decision-making process. The court found that the conduct did not meet the threshold of being misleading in a material sense. Consequently, the court concluded that Paver's conduct did not constitute misleading or deceptive conduct or an unfair practice under the Australian Consumer Law. As a result, the application was dismissed.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hellier & anor v Paver & anor [2015] NSWLEC 1235
Hearing dates:	24 June 2015
Date of orders:	24 June 2015
Decision date:	24 June 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	Trees (Disputes Between Neighbours); hedge; obstruction of views; some trees not planted so as to form a hedge; obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Johnson v Angus [2012] NSWLEC 192 Liddell v Jones [2014] NSWLEC 1183 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Peter John Hellier (First Applicant) Narelle Ann Hellier (Second Applicant) Graham Kent Paver (First Respondent) Jill Eileen Paver (Second Respondent)
Representation:	Counsel: David Newhouse, solicitor (Applicants) Janine Wilson, solicitor (Respondents) Solicitors: Newhouse & Arnold Solicitors (Applicants) Baker Love Lawyers (Respondents)
File Number(s):	20237 of 2015