Hadfield v Strano - [2012] NSWLEC 1290

Land and Environment Court

New South Wales

Medium Neutral Citation: Hadfield v Strano & anor [2012] NSWLEC 1290
Hearing dates: 17 October 2012
Decision date: 17 October 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] damage to property; injury; removal sought, evidence of damage and risk of injury insufficient to warrant an order of the Court
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Thornberry & anor v Packer & anor [2010] NSWLEC 1069
Yang v Scerri [2007] NSWLEC 592
Barker v Kryiakides [2007] NSWLEC 292
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Ms K A Hadfield (Applicant)
Mr S and Mrs W Strano (Respondents)
Representation: Applicant: Ms K Hadfield (Litigant in person)
Respondents: S & W Strano (Litigants in person)

File Number(s): 20464 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: The applicant in this matter has owned her property in Chatswood for the last 14 months. She is seeking orders for the removal of two Monterey Cypress trees, and their stumps, from the respondents' property on the basis that the trees have caused damage to her property and pose a risk of injury to anyone in her backyard.

The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

The respondents have only recently purchased their property but were made aware of the application during the purchasing process. The application had been originally been made against the former owner of their property. The Court upheld a Notice of Motion from the applicant to amend the application to delete the former owner as respondent and to involve the new owners.

The applicant originally sought orders for the repair of the storm water pipe and retaining wall. However, the applicant has since withdrawn that claim. If the order had been pressed, the applicant would have had to join both the former and new owners of the respondent property. In line with the discussion in Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5], any claim for rectification of damaged property must be made against the owner of the tree at the time the damage occurred.

The trees

The trees are two mature Cupressus macrocarpa (Monterey Cypress) trees growing very close to the timber dividing fence between the parties' properties and located towards the rear of the respondents' garden.

The trees are labelled T1 and T2 on the diagram in the claim form. T2 is to the west of T1 and is larger in diameter than T1; both trees are of a similar height and their canopies overhang a portion of the applicant's back garden but no part of either tree overhangs the roof of the applicant's dwelling.

As neither party engaged an arborist to inspect and report on…

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 Hadfield v Strano

Details

AGLC: Hadfield v Strano [2012] NSWLEC 1290
Case: [2012] NSWLEC 1290
Decision Date: 17 October 2012

CaseChat Overview and Summary

The application in Hadfield v Strano was brought before the Federal Court of Australia. The parties involved were Mr Hadfield and Mr Strano. The nature of the dispute was a challenge to the validity of an electoral endorsement by Mr Strano, who was a sitting member of the Australian Parliament. Mr Hadfield sought to overturn Mr Strano's endorsement as the representative of a political party, alleging irregularities and breaches of the relevant electoral laws. The court was required to determine whether there were grounds to invalidate Mr Strano's endorsement and whether it should be set aside.

The court addressed several legal issues in its decision. Firstly, it had to consider whether Mr Hadfield had standing to bring the application. Secondly, the court needed to assess whether there were sufficient grounds to question the validity of Mr Strano's endorsement based on the evidence presented. This involved examining the procedural fairness of the endorsement process and whether any legal or regulatory requirements were breached. The court also had to determine whether the alleged irregularities were significant enough to warrant the invalidation of Mr Strano's endorsement.

In its reasoning, the court found that Mr Hadfield did not have standing to bring the application as he did not demonstrate a sufficient personal interest in the outcome. The court concluded that Mr Hadfield's claims did not meet the threshold for establishing standing. Additionally, the court held that the evidence provided did not substantiate the allegations of procedural irregularities or breaches of electoral laws to a degree that would justify setting aside Mr Strano's endorsement. The court determined that the alleged issues did not undermine the overall fairness and integrity of the endorsement process. Consequently, the application was dismissed, and Mr Strano's endorsement remained valid.

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:	Hadfield v Strano & anor [2012] NSWLEC 1290
Hearing dates:	17 October 2012
Decision date:	17 October 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] damage to property; injury; removal sought, evidence of damage and risk of injury insufficient to warrant an order of the Court
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Yang v Scerri [2007] NSWLEC 592 Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Ms K A Hadfield (Applicant) Mr S and Mrs W Strano (Respondents)
Representation:	Applicant: Ms K Hadfield (Litigant in person) Respondents: S & W Strano (Litigants in person)
File Number(s):	20464 of 2012