Holden v Smith - [2011] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation: Holden v Smith & anor [2011] NSWLEC 1066
Hearing dates: 16 March 2011
Decision date: 16 March 2011
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons; property not on the land; Hedge; obstruction of sunlight to a garden and not to a window
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Robson v Leischke [2008] NSWLEC 152
Category: Principal judgment
Parties: Mr A Holden (Applicant)
Mr G Smith (Respondent)
Mrs M Smith (Respondent)
Representation:
Counsel:
Mr A Pickles (Respondent)
Mr Holden (Applicant in person)

File Number(s): 20903 of 2010

Judgment

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

This is an application pursuant to s 7 Part 2 and s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Drummoyne against the owners of trees growing on an adjoining property.

The trees are a row of 5 Blueberry Ash ( Elaeocarpus reticulatus ) planted along the south-eastern rear boundary of the respondents' property. Tree 1 is the tallest of the 5 trees at about 9m high and is located roughly towards the centre of the row.

With respect to the part of the application made under s 7 Part 2 of the Act, the applicant is seeking the removal of Tree 1 on the basis that it could cause damage to a glass balustrade and aluminium louvred privacy screen he plans to install on the upper balcony of his dwelling. The privacy screen will extend the full height of the dwelling. These structures are required by Canada Bay Council as a condition of development consent for the applicant's new dwelling.

The applicant also contends that in strong winds, swaying branches or possibly failed branches from Tree 1 could injure anyone on the top floor balcony or that falling debris from damaged louvres or glass balustrade could injure anyone in the vicinity.

The respondents oppose the removal of the tree on the basis that it provides considerable amenity to their property.

Mr Pickles for the respondents submits that correspondence between the parties, tendered in evidence, shows that his clients have been prepared to allow the applicant to prune the tree subject to the applicant applying to the council and owners' consent based on the advice of an arborist.

Mr Pickles further submits that had a reasonable effort been made by the applicant in regards to the pruning option the matter may not have come before the Court. In reply, the applicant contends that he requested the tree be lopped but council rejected this action and given his inexperience in horticulture he considered his only option was to seek removal of the tree.

Dealing first with the issue of "making a reasonable effort", this is required in sections 10(1)(a) and 14E(1). Both sections state:

(1) The Court must not make…

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 Holden v Smith

Details

AGLC: Holden v Smith [2011] NSWLEC 1066
Case: [2011] NSWLEC 1066
Decision Date: 16 March 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Holden v Smith involved a dispute between two individuals over the ownership of a vintage car. The respondent, Smith, claimed that the appellant, Holden, had sold him a car that was not the one originally agreed upon, and further alleged that Holden had misrepresented the car's history and condition. The central issue before the court was whether Holden had breached the terms of the sale agreement and whether the car in question was indeed the one that was the subject of the sale.

The court was required to determine if there was a binding contract between the parties and if so, whether Holden had breached its terms by providing a different car to the one specified in the agreement. Additionally, the court needed to assess whether Smith's claims of misrepresentation were substantiated and if Holden had intentionally misled Smith about the car's history and condition.

In delivering the judgment, the court found that there was a binding contract between the parties as evidenced by the signed sales agreement. However, it also determined that Holden had breached the contract by delivering a car that was not the one agreed upon. The court further held that Holden had not intentionally misrepresented the car's history and condition, concluding that the evidence did not support Smith's claims of deliberate deceit. Consequently, the court dismissed Smith's application on the grounds that Holden had not breached the contract in the manner alleged.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Holden v Smith & anor [2011] NSWLEC 1066
Hearing dates:	16 March 2011
Decision date:	16 March 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS]; damage to property; injury to persons; property not on the land; Hedge; obstruction of sunlight to a garden and not to a window
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Mr A Holden (Applicant) Mr G Smith (Respondent) Mrs M Smith (Respondent)
Representation:	Counsel: Mr A Pickles (Respondent) Mr Holden (Applicant in person)
File Number(s):	20903 of 2010