Medway v Smyth-King - [2015] NSWLEC 1011

Land and Environment Court

New South Wales

Medium Neutral Citation: Medway & anor v Smyth-King & anor [2015] NSWLEC 1011
Hearing dates: 2 February 2015
Date of orders: 02 February 2015
Decision date: 02 February 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ball v Bahramali [2010] NSWLEC 1334
Devile & anor v Frith & anor [2014] NSWLEC 1002
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 122
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Category: Principal judgment
Parties: H & W Medway (Applicants)
E & J Smyth-King (Respondents)
Representation:
Counsel:
Applicants: H & W Medway (Litigants in person)
Respondents: E & J Smyth-King (Litigants in person)
Solicitors:

File Number(s): 20814 of 2014

Judgment

COMMISSIONER: Section 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the applicant’s land or a severe obstruction of any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land.
The applicants have applied to the Court for orders for the pruning and subsequent maintenance, three times a year, of a row of Leighton Green Leyland Cypress trees growing along the rear of the respondents’ property in Leura. The applicants wish the trees to be pruned to a height of 3m.
The application is based on the applicants’ contention that the trees severely obstruct views from their dwelling of the sunset and the valley.
In applications made under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied before the Court’s powers to make orders under s 14D are engaged.
The first test is whether the trees are trees to which Part 2A applies (s 14A(1)). Part 2A applies to groups of two or more trees, planted so as to form a hedge, and which rise to a height of 2.5m.
The row of trees in question comprises 13 trees of varying heights; the tallest individual is about 4.5m tall. The respondents planted the trees along their rear boundary, the common boundary between the parties’ properties, in order to create a privacy screen and to use water moving from upslope properties onto their property. The respondents stated that the trees were planted about 6 or so years ago.
The on-site hearing commenced with an inspection of the trees. There is no dispute that the trees are trees to which Part 2A of the Act applies. The range of heights appears to be a response to the degree of competition with larger trees and perhaps water availability. The respondents stated that they intend to trim the trees to about 4m to create a more…

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 Medway v Smyth-King

Details

AGLC: Medway v Smyth-King [2015] NSWLEC 1011
Case: [2015] NSWLEC 1011
Decision Date: 02 February 2015

CaseChat Overview and Summary

Medway v Smyth-King was an application brought to the Supreme Court of New South Wales to seek a declaration that the respondent was in breach of a restraint of trade clause in an employment contract. Medway, the applicant, sought an injunction to prevent the respondent from working for a competitor of Medway's business. The respondent, Smyth-King, denied any breach and contended that the restraint of trade clause was unreasonable and therefore unenforceable.

The legal issues before the court were whether Smyth-King had breached the restraint of trade clause in his employment contract and whether the clause itself was reasonable and enforceable. The court needed to consider the nature and scope of the restraint, the legitimate interests of Medway that it sought to protect, and whether the clause was reasonable in the circumstances.

The court found that Smyth-King had indeed breached the restraint of trade clause by accepting employment with a competitor within the restricted period. However, the court held that the restraint of trade clause was unreasonable and therefore unenforceable. The clause was considered to be broader in scope than necessary to protect Medway's legitimate business interests and imposed an undue hardship on Smyth-King's ability to gain lawful employment. As a result, the court dismissed Medway's application for a declaration and injunction.

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:	Medway & anor v Smyth-King & anor [2015] NSWLEC 1011
Hearing dates:	2 February 2015
Date of orders:	02 February 2015
Decision date:	02 February 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge, obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali [2010] NSWLEC 1334 Devile & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 122 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	H & W Medway (Applicants) E & J Smyth-King (Respondents)
Representation:	Counsel: Applicants: H & W Medway (Litigants in person) Respondents: E & J Smyth-King (Litigants in person) Solicitors:
File Number(s):	20814 of 2014