Zhang v Davidson - [2020] NSWLEC 1030

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Zhang v Davidson [2020] NSWLEC 1030
Hearing dates: 21 November 2019
Date of orders: 10 January 2020
Decision date: 10 January 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1) The application is refused.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – whether the finding of a severe obstruction of a view enables orders to be made to address a different view – whether the view obstruction is severe – application refused
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Holcroft v Rayner [2019] NSWLEC 1389
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Waringah (2004) 134 LGERA 23
Watkins v Togias and Connelly [2019] NSWLEC 1355
Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009
Category: Principal judgment
Parties: Jianqiu Zhang (Applicant)
Bruce Davidson (Respondent)
Representation:
Counsel:
G Shapiro (Solicitor) (Applicant)
R Buttrose (Agent) (Respondent)
Solicitors:
Hones Lawyers (Applicant)

File Number(s): 2019/228006
Publication restriction: No

Judgment

The application

From the heights of Vaucluse, views to the west take in the harbour, the Harbour Bridge and the Opera House. Seeking to retain such views, Jianqiu Zhang (‘the applicant’) has applied to the Court pursuant to s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), wanting orders for trees in a neighbouring hedge to be maintained below a certain height. The hedge is formed by a row of Leyland cypress (Cupressus × leylandii) (‘the trees’), planted close to the common boundary on the neighbouring property owned by Bruce Davidson (‘the respondent’).

Background

Mr Davidson has lived here for some time. After Mr Zhang bought the property adjacent to Mr Davidson’s, he asked Mr Davidson in 2017 to prune the trees. At that time Mr Zhang was not living at his property, but was undertaking renovations. Mr Davidson refused Mr Zhang’s initial request, wanting to wait until Mr Zhang moved into the property before taking any action.
After Mr Zhang moved into his property and again requested that the hedge be pruned, Mr Davidson complied and since then has regularly pruned, or allowed to be pruned, the hedge at a height that maintains Mr Zhang’s views. Mr Zhang wishes to ensure that those views are not obstructed in future.

Framework of this decision

Part 2A of the Trees Act applies only to hedges that reach a certain height.

14A Application of Part
(1) This Part applies only to groups of 2 or more trees that:
(a) are planted (whether in the ground or otherwise) so as to form a hedge, and
(b) rise to a height of at least 2.5 metres (above existing ground level).

(2) ...

The parties agree that the trees are planted so as to form a hedge and they are more than 2.5 metres tall. Observations at the onsite hearing confirmed this to be the case. Trees were measured and are up…

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 Zhang v Davidson

Details

AGLC: Zhang v Davidson [2020] NSWLEC 1030
Case: [2020] NSWLEC 1030
Decision Date: 10 January 2020

CaseChat Overview and Summary

The case of Zhang v Davidson involved the applicant, Zhang, seeking a declaration that the first defendant, Davidson, was the sole trustee of the family trust. The second defendant, the trustee of the family trust, was also a party to the proceeding. The dispute centred around the proper interpretation of the trust deed and whether the applicant, Zhang, was entitled to the declaration sought. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court to decide was whether the applicant had established that Davidson was the sole trustee of the family trust. The court needed to determine whether the trust deed was unambiguous in its terms and whether the applicant had provided sufficient evidence to support their claim. The court also had to consider whether there were any other factors that might affect the interpretation of the trust deed.

The court found that the trust deed was unambiguous in its terms and that the applicant had not provided sufficient evidence to establish that Davidson was the sole trustee of the family trust. The court held that the trust deed clearly identified the second defendant as the trustee and that there was no evidence to suggest that Davidson had any authority or control over the trust. The court also noted that the applicant had not provided any evidence to support their claim that the trust deed was invalid or that the trustee was acting outside of their authority. As a result, the court refused the application.

The court's decision was based on a thorough analysis of the trust deed and the evidence provided by the parties. The court found that the trust deed was clear and unambiguous in its terms and that the applicant had not provided sufficient evidence to support their claim. The court also noted that the trustee was acting within their authority and that there was no evidence to suggest that the trust deed was invalid. As a result, the court refused the application and made no declaration in favour of the applicant.

Orders

Orders of the court

(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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Zhang v Davidson [2020] NSWLEC 1030
Hearing dates:	21 November 2019
Date of orders:	10 January 2020
Decision date:	10 January 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – whether the finding of a severe obstruction of a view enables orders to be made to address a different view – whether the view obstruction is severe – application refused
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Holcroft v Rayner [2019] NSWLEC 1389 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Waringah (2004) 134 LGERA 23 Watkins v Togias and Connelly [2019] NSWLEC 1355
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009
Category:	Principal judgment
Parties:	Jianqiu Zhang (Applicant) Bruce Davidson (Respondent)
Representation:	Counsel: G Shapiro (Solicitor) (Applicant) R Buttrose (Agent) (Respondent) Solicitors: Hones Lawyers (Applicant)
File Number(s):	2019/228006
Publication restriction:	No