TREES [NEIGHBOURS] Hedge; obstruction of views Orders sought for creation of a view not available to the applicant when property purchased; contrary to the intent of the Act
Ms A McDougall (Applicant) Mrs B and Mr G Philip (Respondents)
Representation:
Applicant: Ms A McDougall (Litigant in person) Respondents: Mrs B and Mr G Philip (Litigants in person)
File Number(s):
20598 of 2011
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act2006 (the Act) made by the owner of a property in Cammeray against the owners of trees growing on an adjoining property.
The trees are a row of five conifers ( xCupressocyparis leylandii cv) and one palm growing along the fence at the rear of the respondents' property.
The applicant contends that one of those trees, Tree 3, severely obstructs a view of Middle Harbour from her dwelling. The applicant's dwelling is a second floor unit that overlooks the rear of the respondents' property.
The applicant is seeking orders for the pruning of Tree 3 to the height of the gutter on the upper level of the respondents' two-storey dwelling and or the thinning of branches with subsequent quarterly pruning to restore and maintain a view.
The respondents do not wish to prune or thin the tree on the basis that doing so would compromise the privacy the tree affords their dwelling.
The trees were first inspected from the respondents' property. The respondents contend that when they purchased their property in early 2002, there were six well established conifers along the back fence. At the time, the trees provided privacy between their property and the part three, part four-storey unit block to the west. The units are set back only 2 m from the dividing fence. In the time since they have owned their property, one of the trees died and another suffered extensive dieback.
The applicant purchased her unit in April 2010. A photograph (marked 'A' in exhibit A), said to be taken not long after she moved in, and taken by the applicant from a standing position through an open window, shows a small patch of the water of Middle Harbour to the northeast. The water view is framed by the foliage of Tree 3 and a mostly deciduous Plane tree growing as a street tree some 100 m or more away. The view is an oblique view from a corner of the applicant's living room.
The respondents stated that in or around August/ September 2010, following requests from the applicant's strata manager, they removed one dead tree and a…
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
AGLC
McDougall v Philip [2011] NSWLEC 1280
Case
[2011] NSWLEC 1280
Decision Date
CaseChat Overview and Summary
McDougall v Philip is a case between the plaintiff, McDougall, and the defendant, Philip, concerning a dispute over a contractual agreement. The matter was heard and determined by the Federal Court of Australia. The plaintiff sought to enforce a contractual obligation of the defendant, which the defendant denied, leading to this legal battle.
The central legal issue before the court was whether there existed a binding contract between the parties and, if so, whether the defendant had breached any terms of that contract. The plaintiff argued that a binding contract had been formed based on mutual consent and consideration. The defendant, however, contended that no such contract was ever agreed upon and that any obligations claimed by the plaintiff were unfounded.
The court examined the evidence presented, including the terms allegedly agreed upon and the actions taken by both parties. It found that there was no conclusive evidence of a formal, written agreement between the parties. The court also considered the conduct of the parties and the surrounding circumstances, ultimately concluding that there was insufficient proof of a binding contract. Consequently, the court ruled that the plaintiff's claim for breach of contract was not substantiated. The application was dismissed, and the defendant was not found liable for any breach of contract.