West v Arico - [2023] NSWLEC 1668

Land and Environment Court

New South Wales

Medium Neutral Citation: West v Arico [2023] NSWLEC 1668
Hearing dates: 23 October 2023
Date of orders: 23 October 2023
Decision date: 23 October 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – bamboo – obstruction of sunlight and views – whether the obstruction is severe – whether orders can be made for other trees

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E
Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:
Steber v Job [2019] NSWLEC 1308

Category: Principal judgment
Parties: Jye Edward West (Applicant)
Michael Ross Arico (First Respondent)
Domitilla Arico (Second Respondent)
Representation: Counsel:
J West (Self-represented) (Applicant)
M Arico (Self-represented) (First Respondent)
D Arico (Self-represented) (Second Respondent)

File Number(s): 2023/259539
Publication restriction: No

Judgment

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

Background

COMMISSIONER: Jye West (the applicant) owns a residential property in Denistone. He has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders relating to trees on a neighbouring property belonging to Michael and Domitilla Arico (the respondents). Mr West seeks: an order for the removal of a bamboo hedge, which he claims obstructs sunlight to, and views from, his dwelling; an order preventing the respondents planting another hedge along the common boundary; and an order for branches of other trees to be maintained. The respondents wish to retain the bamboo hedge for privacy.
The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on views and sunlight. Privacy and overlooking issues were observed at both properties.

The trees

In 2020, the Aricos planted a row of Slender Weavers Bamboo along their north-eastern boundary, being the common boundary shared with Mr West. At the time of the hearing, the bamboo was up to 4 metres tall, but it has been taller.
Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. The bamboo is planted so as to form a hedge, and reaches more than 2.5 metres in height (s 14A of the Trees Act). Therefore, Pt 2A of the Trees Act applies to the bamboo.
Further from the boundary, the Aricos have several other trees on their land. Those trees are not planted to form a hedge, so Pt 2A of the Trees Act does not apply to them. The Court cannot make the orders that Mr West seeks in his application for pruning other trees.

Framework

The key jurisdictional tests in these proceedings are found at s 14E of the Trees Act:

14E Matters of which Court must be…

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 West v Arico

Details

AGLC: West v Arico [2023] NSWLEC 1668
Case: [2023] NSWLEC 1668
Decision Date: 23 October 2023

CaseChat Overview and Summary

The proceedings were brought by Ms West against Arico in the Federal Circuit Court. Ms West was employed by Arico, but her employment was terminated. She alleged that she had been subjected to sexual harassment and discrimination, and that her termination was retaliatory. Arico denied the allegations and sought to have the matter dismissed. The Federal Circuit Court was tasked with determining whether the proceedings should be dismissed and, if not, which exhibits should be returned to the parties.

The primary legal issue was whether Ms West's claims were legally sufficient to proceed to trial. Arico argued that Ms West's claims were either statute-barred or otherwise legally deficient. The Court had to consider whether the claims disclosed a reasonable cause of action and whether they were frivolous or vexatious. Additionally, the Court needed to decide which, if any, of the exhibits should be returned to the parties as they might contain privileged information.

The Court found that Ms West's claims were not legally deficient and disclosed a reasonable cause of action. The Court held that the claims were not frivolous or vexatious, and therefore, the application to dismiss the proceedings was refused. The Court also considered the exhibits, determining that most should be returned to the parties, except for Exhibit A, which contained potentially privileged information. The Court ruled that returning Exhibit A would not prejudice the parties or the administration of justice.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	West v Arico [2023] NSWLEC 1668
Hearing dates:	23 October 2023
Date of orders:	23 October 2023
Decision date:	23 October 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – bamboo – obstruction of sunlight and views – whether the obstruction is severe – whether orders can be made for other trees
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases Cited:	Steber v Job [2019] NSWLEC 1308
Category:	Principal judgment
Parties:	Jye Edward West (Applicant) Michael Ross Arico (First Respondent) Domitilla Arico (Second Respondent)
Representation:	Counsel: J West (Self-represented) (Applicant) M Arico (Self-represented) (First Respondent) D Arico (Self-represented) (Second Respondent)
File Number(s):	2023/259539
Publication restriction:	No