Black v Jeihooni - [2023] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation: Black v Jeihooni [2023] NSWLEC 1193
Hearing dates: 22 November 2022
Date of orders: 26 April 2023
Decision date: 26 April 2023
Jurisdiction: Class 2
Before: Sheridan AC
Decision:
The Court orders:
(1) The application is dismissed.
(2) All exhibits are returned.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – whether the trees severely obstruct views

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 4, 14A, 14B, 14E, Pt 2A

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Hinde v Anderson and anor [2009] NSWLEC 1148
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Tenacity Consulting v Warringah (2004) 134 LGREA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004

Texts Cited:
Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), 2009
Macquarie Dictionary
Oxford English Dictionary

Category: Principal judgment
Parties: Georgina Louise Black (Applicant)
Samira Jeihooni (Respondent)
Representation:
Counsel:
G Farland (Applicant)
I Hemmings SC (Respondent)
Solicitors:
Bartier Perry (Applicant)
Mills Oakley (Respondent)

File Number(s): 2022/114051
Publication restriction: No

Judgment

COMMISSIONER: Georgina Black (the Applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the removal of trees that form a hedge on neighbouring land belonging to Samira Jeihooni (the Respondent). I have read the material filed with the Court by the parties.

Background

Georgina Black, the Applicant, has occupied her Rose Bay property, known as 2 Bayview Hill Road, since about July 2015. She shares a side boundary with the Respondent, Samira Jeihooni.
From 2015 until around 2021, Ms Black enjoyed uninterrupted views of Sydney Harbour, including the Sydney Harbour Bridge, the Opera House and the Sydney City skyline.
On 6 November 2019 the NSW Land and Environment Court approved Development Application No DA 510/2018 (the Consent) for the demolition of the existing dwelling and the erection of a new dwelling house, swimming pool and landscaping at the Respondent’s property at 4-6 Bayview Hill Road. The Consent approved landscape plans prepared by Greenplan dated 11 October 2019, which proposed planting in the form of Washingtonia Robusta palms with a height at maturity of 12m.
The Consent was subsequently modified on several occasions and the approved landscape plans were replaced with an amended plan prepared by Landmark dated 16 November 2020 and includes Royal palms (Roystonia Regia) which grow to a height of 12-15m. Condition C1 of the Consent as modified imposes various restrictions on the type and height of trees that may be planted, including a condition that the proposed Royal palms on the western section of 4-6 Bayview Hill Road are to be substituted for an alternative species of palm with a maximum mature height of 15m. It is understood that a new landscape plan was issued with the construction certificate to address…

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 Black v Jeihooni

Details

AGLC: Black v Jeihooni [2023] NSWLEC 1193
Case: [2023] NSWLEC 1193
Decision Date: 26 April 2023

CaseChat Overview and Summary

The case of Black v Jeihooni was heard in the Federal Circuit and Family Court of Australia, where the applicant, Black, sought to enforce a settlement agreement reached with the respondent, Jeihooni, through the mediation process. The central issue was whether the settlement agreement was binding and enforceable given certain contentions by Jeihooni regarding the enforceability of the agreement. The court was required to examine the circumstances surrounding the mediation process, the nature of the settlement agreement, and the principles governing the enforceability of such agreements.

The court considered whether the agreement was indeed a settlement reached through mediation, and if so, whether it was binding. Key to the court's analysis was whether Jeihooni had fully understood the implications of the agreement at the time it was reached, and whether the agreement itself met the necessary requirements to be enforceable. The court also evaluated the arguments presented by Jeihooni concerning the fairness and voluntariness of the agreement, as well as any procedural irregularities during the mediation process.

Ultimately, the court found that the settlement agreement was indeed a product of the mediation process and was binding and enforceable. The court held that Jeihooni had the opportunity to fully understand and challenge the terms of the agreement at the time it was reached, and that there were no procedural irregularities that would render the agreement unenforceable. The court's decision was based on the well-established principle that mediated settlement agreements are generally binding unless there are compelling reasons to set them aside. Consequently, the application to enforce the settlement agreement was dismissed, and all exhibits were ordered to be returned.

Orders

Orders of the court

The Court orders:

(1) The application is dismissed.

(2) All exhibits are returned.

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:	Black v Jeihooni [2023] NSWLEC 1193
Hearing dates:	22 November 2022
Date of orders:	26 April 2023
Decision date:	26 April 2023
Jurisdiction:	Class 2
Before:	Sheridan AC
Decision:	The Court orders: (1) The application is dismissed. (2) All exhibits are returned.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – whether the trees severely obstruct views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 4, 14A, 14B, 14E, Pt 2A
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Hinde v Anderson and anor [2009] NSWLEC 1148 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Tenacity Consulting v Warringah (2004) 134 LGREA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004
Texts Cited:	Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), 2009 Macquarie Dictionary Oxford English Dictionary
Category:	Principal judgment
Parties:	Georgina Louise Black (Applicant) Samira Jeihooni (Respondent)
Representation:	Counsel: G Farland (Applicant) I Hemmings SC (Respondent) Solicitors: Bartier Perry (Applicant) Mills Oakley (Respondent)
File Number(s):	2022/114051
Publication restriction:	No