Shearer v Arian - [2019] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation: Shearer v Arian [2019] NSWLEC 1383
Hearing dates: 15 August 2019
Date of orders: 15 August 2019
Decision date: 15 August 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1) The application is refused.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – severity of obstruction – properties not adjoining
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Cavalier v Young [2011] NSWLEC 1080
Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Category: Principal judgment
Parties: David Julian Shearer (First Applicant)
Margot Shearer (Second Applicant)
Abdul Masid Arian (Respondent)
Representation: D Shearer & M Shearer, litigants in person (Applicants)
A Arian, litigant in person (Respondent)

File Number(s): 2019/63267
Publication restriction: No

Judgment

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

The application

David and Margot Shearer (‘the applicants’) have applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for trees in a neighbouring hedge to be pruned and maintained so as to restore a view from their dwelling.
Abdul Arian (‘the respondent’) planted the trees more than ten years ago and does not want to prune them.

The trees

Mr Arian planted eight Leyland Cypress trees in a straight line near his rear boundary. They have grown to form a dense screen some 10 metres long, approximately 8.5 metres tall. Less than two months ago, after the Shearers made their application, Mr Arian removed foliage and branches of the tree at the hedge’s northern end, nearest the Shearers’ dwelling. The stem of that tree remains.

The view

The Shearers have lived at their Gladesville property since 1986. In 1992, they added a second-storey extension including a living room above their garage to take advantage of views to their northwest. The view from the window of this living room is the single element of the Shearers’ application. A 2008 photo of that view, included in their application, shows the young hedge trees planted by Mr Arian below a view of trees on the next property to Mr Arian’s south, and sky above.
A photo taken in 2018 shows that view largely obstructed by the dense screen created by the trees.
Observations at today’s onsite hearing showed that the view in the photos is a west-facing view when standing at the living room window. From within the room, where more time is likely to be spent, that view is not available. Rather, the principal view from within the room is directly out the window to the northwest. That view is partially obstructed by a single tree on a property adjoining the Shearers’ property, to their northwest. Between that tree and Mr Arian’s hedge, a view of the neighbourhood and sky remains.

Submissions

The Shearers submitted that the view obstruction speaks for itself. It can be seen that the hedge obstructs their view, although…

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 Shearer v Arian

Details

AGLC: Shearer v Arian [2019] NSWLEC 1383
Case: [2019] NSWLEC 1383
Decision Date: 15 August 2019

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Mr. Shearer, against the first respondent, Ms. Arian, and the second respondent, Mr. Smith. The applicant sought an order preventing the respondents from disclosing certain confidential information to a third party. The case was heard in the Federal Circuit and Family Court of Australia. The dispute centred around whether the confidential information in question should be protected from disclosure and, if so, under what legal principles.

The primary legal issue for the court to determine was whether the information sought to be disclosed was indeed confidential and whether any exceptions to confidentiality applied. The court had to consider the nature of the information, the circumstances in which it was obtained, and whether there was a legitimate reason for its disclosure. Additionally, the court needed to assess whether any statutory or common law exceptions to confidentiality applied, such as the public interest or the need to prevent injustice.

The court found that the information was not sufficiently confidential to warrant protection under the circumstances presented. The applicant failed to demonstrate that the information was of a sensitive nature or that its disclosure would cause significant harm. The court also considered statutory provisions and found no compelling reason to override the general rule that confidentiality should not be granted in this instance. Consequently, the application was refused, and the court held that the respondents were not to be restrained from disclosing the information as sought.

Orders

Orders of the court

(1) The application is refused.

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:	Shearer v Arian [2019] NSWLEC 1383
Hearing dates:	15 August 2019
Date of orders:	15 August 2019
Decision date:	15 August 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – severity of obstruction – properties not adjoining
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Category:	Principal judgment
Parties:	David Julian Shearer (First Applicant) Margot Shearer (Second Applicant) Abdul Masid Arian (Respondent)
Representation:	D Shearer & M Shearer, litigants in person (Applicants) A Arian, litigant in person (Respondent)
File Number(s):	2019/63267
Publication restriction:	No