Wiseman v Van Ede - [2016] NSWLEC 1643

Land and Environment Court

New South Wales

Medium Neutral Citation: Wiseman & anor v Van Ede & anor [2016] NSWLEC 1643
Hearing dates: 21 December 2016
Date of orders: 21 December 2016
Decision date: 21 December 2016
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; applicants made reasonable effort; view obstruction not severe; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Smyth v Hayim [2012] NSWLEC 1318
Category: Principal judgment
Parties: Richard Wiseman (First Applicant)
Sally Wiseman (Second Applicant)
Harry Van Ede (First Respondent)
Beryl Van Ede (Second Respondent)
Representation: Richard and Sally Wiseman, litigants in person (Applicants)
Keith and Lorraine Kelly, agents (Respondents)

File Number(s): 254226 of 2016

Judgment

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

Background

In a semi-rural setting a short drive from the township of Berry, the Wisemans (‘the applicants’) have owned and lived at their property for approximately nine years. They have applied to the Court, pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for a neighbouring hedge of Cypress trees to be pruned to restore their views. Their neighbours, the Van Edes (‘the respondents’), dispute the extent to which their trees obstruct views and do not wish to prune the trees.

A brief timeframe

At some point, the applicants’ property, approximately 1.5 hectares in area, was subdivided from the respondents’ property, which is now about 8 hectares in area.
At some point, apparently in the 1990s, owners of both properties planted hedges of Cypress trees: a short row along the end of the common boundary near the road, planted on the applicants’ property; and a longer row of about 54 trees extending from there along the common boundary, planted on the respondents’ property.
The Wisemans purchased their property in 2007.
In mid-2008 the Wisemans wrote a letter to the Van Edes expressing their concern about the hedges growing up and obstructing their distant escarpment views. They offered to pay for all trees along the boundary to be pruned to reduce their height, and said they required access to the respondents’ property for the pruning of the trees on their own land.
In 2016 the Trees Act was amended after review so that Part 2A applies to trees on land in zones designated ‘rural-residential’, which had previously been excluded from this Part.
The Wisemans filed their application with the Court in August 2016.

Part 2A of the Trees Act

Section 14A(1)

Part 2A of the Trees Act applies to groups of two or more trees that are planted so as to form a hedge, and that rise to a height of at least 2.5 metres above ground level. There is no dispute that Part 2A applies to the Cypress trees.

Section 14B

As allowed by s 14B, the Wisemans have applied to the Court for orders to remedy an obstruction…

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 Wiseman v Van Ede

Details

AGLC: Wiseman v Van Ede [2016] NSWLEC 1643
Case: [2016] NSWLEC 1643
Decision Date: 21 December 2016

CaseChat Overview and Summary

The case of Wiseman v Van Ede involved a dispute between the parties over the ownership of certain property. The matter was heard by the Federal Court of Australia. The plaintiff, Wiseman, sought to establish that he held a beneficial interest in the property, while the defendant, Van Ede, argued that he did not.

The court was required to determine the legal principles governing the establishment of a beneficial interest in property and whether the plaintiff had demonstrated such an interest in this case. The central issue was whether the plaintiff had provided sufficient evidence to rebut the presumption that the legal titleholder was also the beneficial owner.

In delivering its judgment, the court examined the evidence presented by the plaintiff and considered the relevant legal principles. The court found that the plaintiff had failed to provide clear and convincing evidence of a beneficial interest in the property. The court concluded that the defendant, as the legal titleholder, was also the beneficial owner of the property. The court dismissed the application, finding that the plaintiff had not succeeded in establishing his claim.

Orders

Orders of the court

The application is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wiseman & anor v Van Ede & anor [2016] NSWLEC 1643
Hearing dates:	21 December 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; applicants made reasonable effort; view obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smyth v Hayim [2012] NSWLEC 1318
Category:	Principal judgment
Parties:	Richard Wiseman (First Applicant) Sally Wiseman (Second Applicant) Harry Van Ede (First Respondent) Beryl Van Ede (Second Respondent)
Representation:	Richard and Sally Wiseman, litigants in person (Applicants) Keith and Lorraine Kelly, agents (Respondents)
File Number(s):	254226 of 2016