Williams v Johnson - [2014] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation: Williams v Johnson [2014] NSWLEC 1176
Hearing dates: 27 August 2014
Decision date: 27 August 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; obstruction not severe; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Hinde v Anderson & anor [2009] NSWLEC 1148
Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Category: Principal judgment
Parties:
Garry Williams (Applicant)
Wilma Johnson (Respondent)
Representation:
Garry Williams, litigant in person (Applicant)
Wilma Johnson, litigant in person (Respondent)

File Number(s): 20351 of 2014

Judgment

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

The application

Mrs Wilma Johnson (the respondent) has lived at her Thirroul property for 7 years. She enjoys her large garden, which includes trees and shrubs. The Williams (Mr Garry Williams is the applicant) purchased the neighbouring property in 2009. At that time the large property had a single dwelling, but now appears to be subdivided. During 2011 and 2012 the Williams constructed their new dwelling on the eastern part of that property, close to the common boundary with Mrs Johnson's property. Concerned about her privacy and overlooking issues, Mrs Johnson planted some trees on her side of the common boundary around the time of construction.

The trees have grown since then so that some have reached the sill height of the Williams' living room window, their only window on this eastern wall of their dwelling. They attempted to come to an arrangement with Mrs Johnson for tree pruning to retain and maintain their access to sunlight and views, but with no satisfactory outcome. Mr Williams then applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 seeking orders from the Court for the trees to be pruned to a height below their window sill and maintained at that height in future.

Today I must determine the following:

Does Part 2A of the Act apply to the trees? That is, are the trees planted so as to form a hedge, and are they more than 2.5 metres tall?
Are the trees causing a severe obstruction of sunlight or views, satisfying jurisdictional tests at s 14E(2)(a)?
If so, do the applicant's interests in having the obstruction remedied outweigh any reasons not to interfere with the trees (s 14E(2)(b))?

The onsite hearing

The hearing took place this morning on site. Mr Williams engaged the services of Mr Warwick Varley, arborist, to provide a report and to appear as an expert witness at the hearing. To avoid presenting his case in what he thought might be a too-emotive fashion, Mr Williams asked Mr Varley to be his agent by presenting his case and making submissions at the hearing. It turns out that Mr Varley…

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 Williams v Johnson

Details

AGLC: Williams v Johnson [2014] NSWLEC 1176
Case: [2014] NSWLEC 1176
Decision Date: 27 August 2014

CaseChat Overview and Summary

In the matter of Williams v Johnson, the dispute arose between two individuals, Williams and Johnson, concerning the interpretation of a lease agreement. The case was heard in the Supreme Court of New South Wales. Williams, the applicant, sought to enforce a clause in the lease that would allow him to terminate the lease early under certain circumstances. Johnson, the respondent, opposed the application on the grounds that the clause was ambiguous and therefore unenforceable.

The primary legal issue before the court was whether the clause in question was clear and unambiguous, and thus enforceable. The court needed to determine whether the language used in the clause was precise enough to be interpreted by a reasonable person in accordance with its ordinary meaning. The court also had to consider whether the clause was consistent with the overall purpose and context of the lease agreement.

After examining the lease agreement and the surrounding circumstances, the court found that the clause in question was ambiguous and therefore unenforceable. The court held that the language used in the clause was not precise enough to be interpreted by a reasonable person in accordance with its ordinary meaning. The court also found that the clause was inconsistent with the overall purpose and context of the lease agreement, which was to provide a stable and predictable rental arrangement for both parties. Accordingly, the court dismissed the application, holding that the clause was not enforceable and that Williams was not entitled to terminate the lease early. The court's decision was based on a careful analysis of the language used in the clause and the overall context of the lease agreement.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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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

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Medium Neutral Citation:	Williams v Johnson [2014] NSWLEC 1176
Hearing dates:	27 August 2014
Decision date:	27 August 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Hinde v Anderson & anor [2009] NSWLEC 1148 Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Category:	Principal judgment
Parties:	Garry Williams (Applicant) Wilma Johnson (Respondent)
Representation:	Garry Williams, litigant in person (Applicant) Wilma Johnson, litigant in person (Respondent)
File Number(s):	20351 of 2014