Lord v Grech; Brooke v Grech - [2015] NSWLEC 1190

Land and Environment Court

New South Wales

Case Name:	Lord v Grech; Brooke v Grech
Medium Neutral Citation:	[2015] NSWLEC 1190
Hearing Date(s):	27 May 2015
Date of Orders:	27 May 2015
Decision Date:	27 May 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	Both applications are upheld. See orders at (15).
Catchwords:	Trees (Disputes Between Neighbours); hedge; severe obstruction of sunlight; application upheld; pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Kathleen Lord (Applicant, 20177 of 2015) Rip Brooke (Applicant, 20178 of 2015) Paul Grech (Respondent, both matters
Representation:	Stephen Lincoln, agent (Applicants, both matters) Paul Grech, litigant in person (Respondent, both matters)
File Number(s):	20177 of 2015; 20178 of 2015

JUDGMENT

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

Background

When Mr Grech purchased his Richmond property several years ago, a row of Leyland Cypress trees had just been planted in the rear garden, about one metre away from the rear boundary. To the south of that boundary are lowset brick dwellings: one owned and occupied by Ms Lord, the other by Mr Brooke. Over the last few years both Ms Lord and Mr Brooke have seen the Cypress trees grow taller, until they both now say that north-facing windows of their dwellings receive no sunlight for much of the day in winter. They have each filed an application with the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking orders for Mr Grech to cut and maintain the hedge at a height that would restore direct sunlight to their windows.
The two applications are separate but apply to trees in the one hedge, so they have been heard concurrently and will be dealt with together in this single judgment.

Framework

In each matter, the Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to windows of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

The hearing took place onsite. I bring my own arboricultural expertise to the matter, in particular regarding the growth habit of this species.
Fourteen trees form a hedge near the boundary, 13 in a straight row and one slightly offset from the line at its eastern end. They are planted at close and regular spacings so as to form a hedge. Their foliage creates a dense green wall that cannot be seen through. They are 6—7 metres tall.
Mr Grech values the trees for their privacy and for their contribution to the garden. He says he does not want the trees to appear pruned and hedge-like, but would prefer them to continue developing their natural form. He says he is willing to prune branches overhanging the boundary, as…

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.

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Details

Case: [2015] NSWLEC 1190
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the case of Lord v Grech; Brooke v Grech, the plaintiffs sought relief from the Supreme Court of Queensland. The dispute involved claims related to the validity of a mortgage agreement and the subsequent sale of property. The plaintiffs, Lord and Brooke, argued that the mortgage agreement was invalid and sought to have it declared void. They further sought an injunction preventing the defendant, Grech, from proceeding with the sale of the property. The court was required to determine the validity of the mortgage agreement and whether the plaintiffs had grounds to seek an injunction against the sale.

The primary legal issues that the court had to decide were whether the mortgage agreement was valid and enforceable, and if so, whether there were sufficient grounds for the plaintiffs to obtain an injunction against the sale of the property. The court had to consider the terms of the mortgage agreement, the conduct of the parties, and the applicable law concerning property and equity. Additionally, the court needed to assess whether the plaintiffs had demonstrated a strong likelihood of success on the merits of their claims and whether they had suffered or were at risk of suffering irreparable harm if the injunction was not granted.

The court found that the mortgage agreement was valid and enforceable. It held that the terms of the agreement were clear and that the plaintiffs had not provided sufficient evidence to challenge its validity. The court also determined that the plaintiffs had not established a strong likelihood of success on the merits of their claims, as the evidence did not support their allegations of invalidity. Furthermore, the court found that the plaintiffs had not demonstrated that they would suffer irreparable harm if the sale proceeded. Consequently, the court denied the injunction and upheld both applications. The court ordered that the mortgage agreement be recognised as valid and enforceable, and that the sale of the property proceed as planned.

Orders

Orders of the court

Both applications are upheld. See orders at (15).

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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