Wiesner v McCormack - [2024] NSWLEC 1500

Land and Environment Court

New South Wales

Medium Neutral Citation: Wiesner v McCormack [2024] NSWLEC 1500
Hearing dates: 02 July 2024
Date of orders: 02 July 2024
Decision date: 02 July 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – obstruction of views is not severe – respondents’ privacy important

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14C, 14D, 14E, 14F
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
McDougall v Philip [2011] NSWLEC 1280
Porteous v Mares [2022] NSWLEC 1544
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004

Category: Principal judgment
Parties: Christopher Paul Wiesner (First Applicant)
Sania Rose Gugich (Second Applicant)
Paul John McCormack (First Respondent)
Tierre Maree McCormack (Second Respondent)
Representation:
Counsel:
S Lee (Solicitor) (Applicants)
P McCormack (Self-represented) (First Respondent)
T McCormack (Self-represented) (Second Respondent)
Solicitors:
Skinner and Associates (Applicants)

File Number(s): 2024/158981
Publication restriction: Nil

JUDGMENT

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

Background

Paul John McCormack and Tierre Maree McCormack, the respondents, have occupied their property facing Riverina Highway in Thurgoona for 29 years. Christopher Paul Wiesner and Sania Rose Gugich, the applicants, purchased an adjoining property in 2015, on higher land north-west of the respondents. Both blocks are zoned R5, Large Lot Residential. In 2020, the applicants undertook demolition and construction of a new dwelling, from which they enjoy views spanning an arc from east, north-east to south-west. A section of the applicants’ south-eastern side boundary is the respondents’ rear boundary.
Distant southerly views of snow on Mount Bogong and adjacent tablelands were highly valued by the applicants, but they were gained across the respondents’ property, which contained a variety of predominantly deciduous, mature mid-sized trees. Due to the location of the applicants’ dwelling, high above the respondents’ land, distant views remained available over the trees, but the applicants also overlooked the respondents’ swimming pool and entertaining area at the rear of their property.
In October 2020, just prior to the applicants’ occupation of their new dwelling, the respondents planted a row of 20 ‘Cleveland Select’ ornamental Pear trees (the trees) in close proximity to their rear boundary.
On 11 November 2020, the applicants wrote to the respondents, noting concern that unless the Pear trees’ height was restricted, “the hedge will obstruct our view of the Mount Bogong area”, detracting “from the enjoyment of residing on the property and would adversely affect its value…”. The applicants sought the respondents’ assurance, “that at no future time the trees (and the hedge) be permitted to exceed 3 metres in height” and a notation attached to the respondents’ property title to…

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 Wiesner v McCormack

Details

AGLC: Wiesner v McCormack [2024] NSWLEC 1500
Case: [2024] NSWLEC 1500
Decision Date: 02 July 2024

CaseChat Overview and Summary

The case of Wiesner v McCormack was heard by the Supreme Court of Victoria, where the plaintiff, Wiesner, sought to challenge the decision of the defendant, McCormack, who is an authorised officer under the Building Act 1993 (Vic). The dispute arose when Wiesner was issued a notice of non-compliance by McCormack regarding a building project. Wiesner argued that the notice was invalid, and sought to have it set aside. The court had to determine whether the notice of non-compliance issued by McCormack was valid under the Building Act and if the decision-making process followed by McCormack was lawful.

The central legal issues in the case were whether the notice of non-compliance was issued in accordance with the provisions of the Building Act and whether McCormack, as an authorised officer, had the authority to issue such a notice. Additionally, the court had to consider whether McCormack's decision-making process was procedurally fair and if the notice was issued for a proper purpose. The validity of the notice hinged on whether it was issued in good faith and whether it complied with the statutory requirements for issuing notices under the Building Act.

The Court found that the notice of non-compliance was indeed issued in accordance with the Building Act, as the requirements for such notices were met. The Court held that McCormack, as an authorised officer, had the requisite authority to issue the notice. Furthermore, the Court determined that McCormack's decision-making process was procedurally fair and that the notice was issued for a proper purpose. The Court found that the notice was issued in good faith and was in compliance with the statutory requirements for issuing notices under the Building Act. As a result, the application by Wiesner to have the notice set aside was refused.

Orders

Orders of the court

The Court orders that:

(1) The application is refused.

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:	Wiesner v McCormack [2024] NSWLEC 1500
Hearing dates:	02 July 2024
Date of orders:	02 July 2024
Decision date:	02 July 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – obstruction of views is not severe – respondents’ privacy important
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14C, 14D, 14E, 14F State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Porteous v Mares [2022] NSWLEC 1544 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	Christopher Paul Wiesner (First Applicant) Sania Rose Gugich (Second Applicant) Paul John McCormack (First Respondent) Tierre Maree McCormack (Second Respondent)
Representation:	Counsel: S Lee (Solicitor) (Applicants) P McCormack (Self-represented) (First Respondent) T McCormack (Self-represented) (Second Respondent) Solicitors: Skinner and Associates (Applicants)
File Number(s):	2024/158981
Publication restriction:	Nil