Macourt v Baudinet - [2016] NSWLEC 1631

Land and Environment Court

New South Wales

Case Name:	Macourt v Baudinet & anor
Medium Neutral Citation:	[2016] NSWLEC 1631
Hearing Date(s):	26 October 2016
Date of Orders:	23 December 2016
Decision Date:	23 December 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; applicant made reasonable effort; trees not planted so as to form a hedge; view obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali & Anor [2010] NSWLEC 1334 Johnson v Angus [2012] NSWLEC 192 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	David Charles Ross Macourt (Applicant) Bruce Warren Baudinet (First Respondent) Lindsay Anne Baudinet (Second Respondent)
Representation:	Counsel: Andrew Pickles SC (Applicant) Janet McKelvey (Respondents) Solicitors: Yates Beaggi Lawyers (Applicant) Andrews & Holm Lawyers (Respondents)
File Number(s):	166950 of 2016

JUDGMENT

Background

The hearing for this matter took place onsite, in Birchgrove, by the water. At one point, Ms McKelvey, Counsel for the respondents, described the vista before us as a “cracker of a view”. Nobody disagreed.
The parties to this matter have lived here now for some time. Dr Macourt (‘the applicant’) now feels that neighbouring trees have grown and obstruct the view he enjoyed earlier. He has applied to the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of a number of neighbouring trees, or if not removal, that they be pruned, to restore his access to views.
The Baudinets (‘the respondents’) own the neighbouring property. They enjoy their garden, as well as their views. They have pruned some of the trees in the past, but are unwilling to remove them.
The parties reached an agreement some 23 years ago regarding the height of the boundary wall extending from the rear of their dwellings toward the water. The purpose of this agreement was for Dr Macourt to retain access to views, including those of the Harbour Bridge and large parts of the harbour. Dr Macourt relies in part on this agreement to support his ongoing access to those views.

Clarification of the application

The application made to the Court included obstruction of both sunlight and views caused by the trees. It sought orders only for the removal (not pruning) of the trees. It showed six trees (at Question 3 of the Part 2A application form) to be the subject of the application.
The applicant was granted leave at the hearing to amend the application to propose orders for pruning the trees to restore access to views in the event that no orders are made for removal. The applicant also clarified that the application regarding sunlight obstruction was not pressed.
The respondents’ evidence included a report by Mr Guy Paroissien, horticulturist and arborist, that detailed ten trees on the respondents’ property. It was convenient to use the tree numbering in this report as the report included a numbered plan…

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 Macourt v Baudinet

Details

AGLC: Macourt v Baudinet [2016] NSWLEC 1631
Case: [2016] NSWLEC 1631
Decision Date: 23 December 2016

CaseChat Overview and Summary

The matter before the Court was an application by the appellant, Macourt, against the respondent, Baudinet. Macourt sought to set aside an earlier judgment in favour of Baudinet. The dispute originated from a contract of employment, and Baudinet claimed that Macourt had failed to pay outstanding monies owed to her as per the terms of their employment agreement. The case was heard by the Supreme Court of Western Australia.

The legal issues before the Court were whether Macourt had grounds to set aside the earlier judgment, and whether Baudinet's claims were valid and supported by evidence. The Court was required to determine whether Macourt had demonstrated any errors in the original judgment, and whether there were any circumstances that warranted the setting aside of the judgment. Additionally, the Court had to consider the merits of Baudinet's claims and whether they were supported by the evidence presented.

The Court found that Macourt had not demonstrated any errors in the original judgment, and there were no circumstances that warranted the setting aside of the judgment. The Court held that Baudinet's claims were valid and supported by evidence, and that Macourt was liable for the outstanding monies owed to Baudinet. The Court found that Macourt had failed to provide any evidence to counter Baudinet's claims, and that the original judgment was correctly made. Consequently, the Court dismissed Macourt's application to set aside the earlier judgment.

Orders

Orders of the court

The application is 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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