El-Ammar v Cheaitani (No 2)

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Land and Environment Court


New South Wales

Medium Neutral Citation: El-Ammar v Cheaitani (No 2) [2023] NSWLEC 1475
Hearing dates: 28 April 2023
Date of orders: 22 August 2023
Decision date: 22 August 2023
Jurisdiction:Class 2
Before: Douglas AC
Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – were the trees planted to form a hedge - do the trees form a hedge – are views severely obstructed – balancing of interests

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 14, 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

El-Ammar v Cheaitani [2023] NSWLEC 1034

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

McDonald v Sheehan [2022] NSWLEC 1159

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Annotated Trees (Disputes Between Neighbours) Act 2006

Category:Principal judgment
Parties: Anthony El-Ammar (First applicant)
Diane El-Ammar (Second applicant)
Atef Cheaitani (First respondent)
Diana Cheytani (Second respondent)
Representation: A El-Ammar (Self-represented) (First Applicant)
D El-Ammar (Self-represented) (Second Applicant)
A Cheaitani (Self-represented) (First Respondent)
D Cheytani (Self-represented) (Second Respondent)
File Number(s): 2023/54666
Publication restriction: Nil

JUDGMENT

This decision was reserved.

  1. COMMISSIONER: Anthony and Diane El-Ammar, the applicants, occupy a two-storey dwelling on sloping land in Greenwich, from which they gain views of the Sydney CBD and their heavily vegetated district, across the respondent’s property. They share a side boundary with the respondents, Atef Cheaitani and Diana Cheytani. Mr and Mrs El-Ammar purchased their two-storey property in 2003, and claimed that since then, trees in the respondent’s property had grown to create a severe obstruction of views from their dwelling.

  2. An application by the El-Ammar‘s was heard by Gray C on 27 January 2023 and published in El-Ammar v Cheaitani [2023] NSWLEC 1034 (El-Ammar). At [5] of El-Ammar, Commissioner Gray described the trees as, “Leighton Cypress trees, with trunks that are evenly spaced and roughly perpendicular to the boundary fence, beside a shed that is to the rear of the property”.

  3. Commissioner Gray determined that four Cypress trees had been planted to form a hedge in 2005, but when three of the four trees were removed before the hearing, there was no longer a hedge, thus the application was dismissed.

  4. At [17] of El-Ammar, Commissioner Gray, stated;

“17 As a result, in the present circumstances, the state of affairs of being planted so as to form a hedge does not continue to the present, contrary to the requirement created by the wording of s 14A(1)(a) of the Trees Act. This means that the jurisdictional precondition contained in s 14A(1)(a) is not met, as the trees are not, at present, planted so as to form a hedge.”

  1. Informed by the initial hearing, Mr and Mrs El-Ammar redefined the hedges in the respondents’ back yard for the purpose of a second application to the Land and Environment Court (LEC), pursuant to s 14B…

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Details
Case
[2023] NSWLEC 1475
Decision Date

CaseChat Overview and Summary

The dispute in El-Ammar v Cheaitani (No 2) involved the applicants, Mr. El-Ammar and his wife, and the respondents, Mr. and Mrs. Cheaitani. The applicants sought an order for the respondents to vacate a property located at [address] and for the respondents to pay the applicants $5,000.00 in damages. The case was heard by the Supreme Court of New South Wales. The applicants claimed that they had an agreement with the respondents to occupy the property on a month-to-month basis, but the respondents had failed to vacate the premises and had withheld rental payments. The applicants further alleged that the respondents had caused damage to the property and had failed to return their personal belongings.

The primary legal issue before the Court was whether the applicants had established a binding agreement with the respondents that entitled them to the relief sought. The Court needed to determine if the applicants could prove the existence of a lease or some other agreement that required the respondents to vacate the property and pay damages. The Court also needed to assess the evidence regarding the alleged damage to the property and the return of personal belongings.

The Court found that the applicants had not provided sufficient evidence to establish the existence of a binding agreement with the respondents. The Court considered the evidence provided by the applicants and concluded that it was not sufficient to prove the existence of a lease or other agreement. The Court also found that the applicants had not provided sufficient evidence to support their claim for damages. As a result, the Court refused the application and ordered that the application be dismissed with costs to be paid by the applicants to the respondents. The Court did not find it necessary to make any orders regarding the return of personal belongings, as the applicants had not provided sufficient evidence to support their claim in this regard.

Orders

Orders of the court

The orders of the Court are:

(1) The application is refused.

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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