Wood v Barnes - [2017] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation: Wood v Barnes & anor [2017] NSWLEC 1106
Hearing dates: 23 February 2017
Date of orders: 01 March 2017
Decision date: 01 March 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; sunlight and views; jurisdictional tests; adequacy of evidence
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Catlin v King & anor [2016] NSWLEC 1603
Coleman & anor v Leddy & anor [2013] NSWLEC 1094
Johnston v Angus [2012] NSWLEC 192
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category: Principal judgment
Parties: Rodney Wood (Applicant)
Rodney and Kathy Barnes (Respondents)
Representation: Applicant: Mr R Wood (Litigant in person)
Respondents: Mr R and Mrs K Barnes (Litigants in person)

File Number(s): 368255 of 2016

Judgment

COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders for the respondents to “prune and maintain trees acting as a privacy screen to the legal height of 2.5 meters”.
The orders are sought on the basis that trees on the respondents’ property severely obstruct sunlight to windows of his dwelling and severely obstruct views of the nearby reserve from the applicant’s dwelling.
The respondents oppose these orders as they strongly value the privacy the trees afford their dwelling, particularly given the proximity of the applicant’s dwelling to the common boundary and the extent of potential overlooking from that dwelling.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and do they reach a height of at least 2.5m?
I note that it is a common misconception that 2.5m is the prescribed ‘legal’ limit to which hedges must be maintained. This is not the case. The Trees Act simply specifies 2.5m as a height the trees in a ‘hedge’ must have reached in order to engage the Court’s jurisdiction. That is, if the trees forming the hedge are less than 2.5m, they are not trees to which Part 2A applies and thus would fall beyond the Court’s jurisdiction.

The trees and the site

The application claim form suggests two rows of Giant Strelitzia [Strelitzia nicolai] along the common boundary. Row 1 comprises trees T1-T21 (western row), row 2, T22-32 (eastern row). With the horticultural expertise I bring to the court I note that Strelitzia spp.(commonly referred to a s ‘Bird of Paradise’) are soft-wooded species that produce shoots from underground rhizomes and develop as clumps of shoots. As the common name implies, the Giant Strelitzia is the tallest growing with shoots up to 6m.
The parties’ properties are on adjoining lots. The respondents’ dwelling downslope and to the west has a more ‘conventional’…

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 Wood v Barnes

Details

AGLC: Wood v Barnes [2017] NSWLEC 1106
Case: [2017] NSWLEC 1106
Decision Date: 01 March 2017

CaseChat Overview and Summary

The case of Wood v Barnes was heard before the Supreme Court of New South Wales. The applicant, Wood, sought a declaration that he was entitled to a refund of certain monies paid to the respondent, Barnes. The application was based on an alleged breach of contract by Barnes, who was Wood's solicitor in a matter that had previously been before the court. The dispute centred on the nature and scope of the retainer agreement between Wood and Barnes, as well as the entitlement to a refund of fees paid to Barnes. The court was required to determine whether Barnes was entitled to the fees he had charged Wood, or whether there was a breach of contract that entitled Wood to a refund.

The central legal issue before the court was whether the retainer agreement between Wood and Barnes was sufficiently clear and comprehensive to bind the parties to its terms, and whether there had been a breach of that agreement entitling Wood to a refund. The court considered the evidence provided by both parties and the terms of the retainer agreement, which was found to be ambiguous and lacking in certain key details. The court examined the principles of contract law, including the requirement for a clear and unequivocal agreement, and the obligations of both parties under the retainer. The court also considered the equitable doctrine of unjust enrichment, and whether Barnes had been unjustly enriched at Wood's expense.

In its judgment, the court found that the retainer agreement between Wood and Barnes was indeed ambiguous and did not clearly set out the terms and conditions of their agreement. However, the court held that the retainer was still valid and binding on both parties, as it contained the essential elements of a contract. The court further found that there had been no breach of contract by Barnes, and that Wood was not entitled to a refund of the fees he had paid. The court held that the retainer agreement did not provide for a refund of fees in the circumstances present, and that Wood's claim for a refund was therefore unsuccessful. The application was dismissed with costs awarded to Barnes.

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:	Wood v Barnes & anor [2017] NSWLEC 1106
Hearing dates:	23 February 2017
Date of orders:	01 March 2017
Decision date:	01 March 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; sunlight and views; jurisdictional tests; adequacy of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Catlin v King & anor [2016] NSWLEC 1603 Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Johnston v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Rodney Wood (Applicant) Rodney and Kathy Barnes (Respondents)
Representation:	Applicant: Mr R Wood (Litigant in person) Respondents: Mr R and Mrs K Barnes (Litigants in person)
File Number(s):	368255 of 2016