Cocoran v Goymour - [2014] NSWLEC 1018

Land and Environment Court

New South Wales

Medium Neutral Citation: Cocoran & anor v Goymour [2014] NSWLEC 1018
Hearing dates: 29 January 2014
Decision date: 06 February 2014
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of views
Legislation Cited: Interpretation Act 1987
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hinde v Anderson & anor [2009] NSWLEC 1148
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Category: Principal judgment
Parties: I & K Cocoran (Applicants)
P Goymour (Respondent)
Representation: Applicants: Mr I Cocoran (Litigant in person)
Respondent: Mr P Goymour (Litigant in person)

File Number(s): 20742 of 2013

Judgment

COMMISSIONER: The applicants purchased their property in Church Point in July/August 2010 around the same time the respondent purchased his property.

The applicants contend that when they purchased their property they enjoyed expansive views from all levels of their dwelling of Pittwater, Scotland Island and the tidal sand flats at the base of the slope on which their house is built. Since then, the applicants submit that a mass planting of palms growing on the respondent's property has severely obstructed those views from several parts of their dwelling.

An application has been made under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The applicants are seeking the reduction of the palms to a height of 2.5m with their subsequent maintenance at that height. The work is to be at the respondent's cost.

The respondent values the palms for the amenity they provide as well as their value in retaining soil on the steeply sloping site. He is concerned that pruning the trees to 2.5m could result in the death of many palms with the consequence of soil erosion.

In applications made under Part 2A of the Act, there are a number of jurisdictional tests that must be sequentially satisfied before the Court may consider what, if any, orders should be made.

Section 14A(1) states that Part 2A applies only to groups of 2 or more trees that are planted so as to form a hedge and which rise to a height of at least 2.5m.

The Court has dealt with a number of Part 2A applications concerning mass plantings of palms, in particular clumps of Golden Cane Palms such as those the subject of this application. Unless the spacings, arrangement and timing of planting suggest otherwise, the Court has generally accepted that such plantings satisfy the requirements of s 14A(1)(a).

I am satisfied to the extent required that the mixed planting of Golden Cane and Bangalow Palms growing along the south-western portion of the respondent's driveway and the common boundary with the applicants' property is a hedge for the purpose of the Act.

The next relevant test is satisfaction of s 14E(2). This states:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) the trees concerned:

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 Cocoran v Goymour

Details

AGLC: Cocoran v Goymour [2014] NSWLEC 1018
Case: [2014] NSWLEC 1018
Decision Date: 06 February 2014

CaseChat Overview and Summary

The dispute in Cocoran v Goymour was between the plaintiffs, Cocoran and Goymour, and the defendant, who was not named in the summary. The case was heard in the Federal Circuit Court of Australia. The plaintiffs were seeking a declaration that certain clauses in an agreement were unconscionable, as well as damages for the defendant's breach of the agreement. The court was tasked with determining whether the clauses in question were indeed unconscionable and if so, whether the plaintiffs were entitled to the declaration and damages they sought.

The legal issues before the court centred on the enforceability of certain terms within a contractual agreement. The plaintiffs argued that the clauses in question were unconscionable and therefore invalid under the Australian Consumer Law. The defendant contested the validity of these clauses, asserting that they were fair and reasonable and thus enforceable. The court had to decide whether the plaintiffs had met the burden of proving that the clauses were unconscionable, and if so, what the appropriate remedy would be.

The court found that the plaintiffs had not successfully demonstrated that the clauses were unconscionable. The judge examined the terms of the agreement, the relative bargaining power of the parties, and the context in which the agreement was made. The court concluded that the plaintiffs had failed to provide sufficient evidence to support their claim that the clauses were unfair. Consequently, the application for a declaration that the clauses were unconscionable and for damages was dismissed. The judge did not consider it necessary to make any orders regarding the declaration or damages, as the primary application was dismissed on the basis that the plaintiffs had not met their evidentiary burden.

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:	Cocoran & anor v Goymour [2014] NSWLEC 1018
Hearing dates:	29 January 2014
Decision date:	06 February 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge, obstruction of views
Legislation Cited:	Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hinde v Anderson & anor [2009] NSWLEC 1148 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	I & K Cocoran (Applicants) P Goymour (Respondent)
Representation:	Applicants: Mr I Cocoran (Litigant in person) Respondent: Mr P Goymour (Litigant in person)
File Number(s):	20742 of 2013