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
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:
Solicitors:
G Farland (Applicant)
I Hemmings SC (Respondent)
Bartier Perry (Applicant)
Mills Oakley (Respondent)
File Number(s): 2022/114051 Publication restriction: No
Judgment
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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
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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.
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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.
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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.
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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…
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- AGLC
- Black v Jeihooni [2023] NSWLEC 1193
- Case
- [2023] NSWLEC 1193
- Decision Date
CaseChat Overview and Summary
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
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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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