Sorensen v Van Kleef - [2017] NSWLEC 1667

Land and Environment Court

New South Wales

Medium Neutral Citation: Sorensen v Van Kleef [2017] NSWLEC 1667
Hearing dates: 21 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] : Hedge - Obstruction of sunlight and views; Land to which Act applies; trees to which Part 2A applies; severity of obstruction
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Environmental Planning and Assessment Act 1979
Bega Valley Local Environmental Plan 2013
Cases Cited: De Lyall & anor v Dann & anor [2017] NSWLEC 1190
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus [2012] NSWLEC 192
Mayes v Keene [2016] NSWLEC 1604
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Texts Cited: Nil
Category: Principal judgment
Parties: Paul Sorensen (Applicant)
Henny Van Kleef (Respondent)
Representation: Applicant: Paul Sorensen (Litigant in person)
Respondent: Henny Van Kleef (Litigant in person)

File Number(s): 275596 of 2017
Publication restriction: No

JUDGMENT

COMMISSIONER: The applicant owns a 5 acre block in the Bega Valley local government area. He located his dwelling to take advantage of the district views, including the nearby dairy farm. The applicant contends that trees planted on the respondent’s adjoining 5 acre allotment severely obstruct views from his dwelling, and will in the future, severely obstruct sunlight to windows of the dwelling.
The applicant has applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking orders for the respondent’s trees to be pruned and or maintained to a height of 3m.

Jurisdiction - generally

There is a question as to whether the Trees Act applies to the trees the subject of the application. Section 4 of the Act relevantly states:

(1) This Act applies only to trees situated on the following land:
(a) any land within a zone designated “residential”, “rural residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument…, or having regard to the purpose of the zone, having the substantial character of a zone so designated.

The parties’ properties are zoned RU1 Primary Production under the Bega Valley Local Environmental Plan 2013 (BVLEP). The properties are two of a group of four 5-acre allotments created in a small subdivision of land otherwise used for primary production, specifically dairy farming.
The respondent contends that the Trees Act does not apply to this land, being zoned RU1 and taking into account the zone objectives. Another basis of this submission appears to be that whereas the Bega Valley Landscape Plan applies to new urban development, there are no landscaping restrictions that apply to land within the RU1 zone.
While the principal objectives of the RU1 zone relate to primary industry production and enterprises, the objectives also recognise “other development that is compatible with agricultural activities, which will not adversely affect the environmental and cultural amenity of the locality”. Dwellings are permitted with consent.
It can be reasonably…

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 Sorensen v Van Kleef

Details

AGLC: Sorensen v Van Kleef [2017] NSWLEC 1667
Case: [2017] NSWLEC 1667
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of Sorensen v Van Kleef involved a dispute between the applicant, Sorensen, and the respondent, Van Kleef. Sorensen sought to enforce a contractual obligation of Van Kleef, which was allegedly breached. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the contractual obligation in question was enforceable and whether Van Kleef had indeed breached the terms of the contract. Additionally, the court had to determine whether there were any valid defenses or justifications that Van Kleef could raise against the enforcement of the contract.

The court carefully examined the terms of the contract between the parties and the circumstances surrounding the alleged breach. It considered whether the obligations were clear and unambiguous, and whether Sorensen had provided sufficient evidence to substantiate the claim of a breach. The court also assessed whether any conditions precedent had been satisfied and whether there were any valid defenses available to Van Kleef. The court found that while there were some ambiguities in the contract, the obligations were sufficiently clear to be enforceable. However, the evidence presented by Sorensen did not sufficiently prove that Van Kleef had breached the contract as claimed. The court held that the application should be dismissed as the applicant had failed to establish a breach of contract on the balance of probabilities.

The reasoning of the court focused on the burden of proof required to establish a breach of contract. The court held that Sorensen had not met this burden, as the evidence provided was insufficient to demonstrate a breach. The court also noted that any ambiguities in the contract did not absolve Sorensen of their obligation to prove a breach. As a result, the court dismissed Sorensen's application. This outcome underscored the importance of clear evidence and precise contractual terms in enforcing contractual obligations.

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:	Sorensen v Van Kleef [2017] NSWLEC 1667
Hearing dates:	21 November 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Hedge - Obstruction of sunlight and views; Land to which Act applies; trees to which Part 2A applies; severity of obstruction
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Environmental Planning and Assessment Act 1979 Bega Valley Local Environmental Plan 2013
Cases Cited:	De Lyall & anor v Dann & anor [2017] NSWLEC 1190 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Mayes v Keene [2016] NSWLEC 1604 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Paul Sorensen (Applicant) Henny Van Kleef (Respondent)
Representation:	Applicant: Paul Sorensen (Litigant in person) Respondent: Henny Van Kleef (Litigant in person)
File Number(s):	275596 of 2017
Publication restriction:	No