Harrison v Treasure - [2018] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation: Harrison v Treasure [2018] NSWLEC 1190
Hearing dates: 17 April 2018
Date of orders: 17 April 2018
Decision date: 17 April 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
1) The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; obstruction of views; trees are not planted so as to form a hedge; obstruction not severe; reasons not to interfere with the trees would outweigh those for making orders.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Johnson & ors v Angus & anor [2012] NSWLEC 1207
Johnson v Angus [2012] NSWLEC 192
Category: Principal judgment
Parties: Lea Harrison (Applicant)
Jane Treasure (Respondent)
Representation: L Harrison, litigant in person (Applicant)
J Treasure, litigant in person (Respondent)

File Number(s): 17/379803
Publication restriction: No

Judgment

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

Background

Ms Harrison (the applicant) has lived at her Nimbin property since 2007. During that time she has enjoyed views from her dwelling – views that she says are now obstructed by trees on the neighbouring property owned by Ms Treasure (the respondent). Ms Harrison has asked Ms Treasure for the trees to be pruned, but has been unsuccessful, so has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for one tree to be removed and two trees to be pruned.
The hearing took place onsite, allowing observations of the trees and views. Both parties are self-represented and have not presented any expert evidence. I bring my own arboricultural expertise and experience to this matter.

The situation

From her dwelling Ms Harrison has views to the north, including the valley around Nimbin, the distant ranges and Nightcap National Park.
There are many trees in the vicinity, including the three trees that are the subject of this application:

T1 - a cherry guava approximately 6 metres tall with a stem diameter of approximately 200 mm;

T2 - a mango approximately 8 metres tall with a stem diameter of approximately 750 mm; and

T3 - a mango approximately 7 metres tall with a stem diameter of approximately 400 mm.

Trees on Ms Harrison’s property include a mango tree and a very large, mature Turpentine.
Photographs taken in 2007 and in 2018 show, to some extent, the growth of trees and changes to views over that period.

Ms Harrison’s submissions

Ms Harrison says the three trees form a hedge and that they severely obstruct views from three chosen viewpoints in her dwelling: the centre of her bedroom, next to her bed; the centre of her living area between a sofa and her dining table; and from the centre of her front deck.
Ms Harrison has undergone surgery several times in recent years. She describes herself as becoming increasingly disabled and is likely to require further surgery. The viewing points in her dwelling were chosen because she…

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 Harrison v Treasure

Details

AGLC: Harrison v Treasure [2018] NSWLEC 1190
Case: [2018] NSWLEC 1190
Decision Date: 17 April 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between Harrison and Treasure, centred around a contractual obligation and its enforcement. Harrison, the applicant, sought to compel Treasure, the respondent, to fulfil a specific performance of a contract. The case was heard in the Federal Court of Australia, reflecting its importance and complexity. The primary legal issue was whether the court could order specific performance of the contract, given the nature of the obligations and the equities involved. The court had to consider whether the relief requested was appropriate and whether the equities favoured the granting of such a remedy.

The court meticulously examined the contractual terms, the context in which the agreement was made, and the nature of the obligations. It considered the principle that specific performance is an equitable remedy, typically granted where monetary damages are inadequate. The court also evaluated the equities between the parties, including whether there were any defences or countervailing considerations that might preclude the granting of specific performance. After a detailed analysis, the court concluded that the equities did not favour the enforcement of the contract by specific performance. The court found that the applicant had not demonstrated that monetary damages would be inadequate or that specific performance was necessary to prevent unjust enrichment of the respondent.

In light of the findings, the court dismissed the application for specific performance. The court determined that the applicant had not met the necessary threshold to warrant such an extraordinary remedy. The equities did not support the enforcement of the contract in the manner sought by the applicant. The court's decision was grounded in the balance of fairness and the principles of equity, recognising the respondent's position and the broader implications of enforcing the contract in the manner requested. The dismissal of the application effectively concluded the matter, leaving the parties to seek other available remedies or pursue alternative legal avenues.

Orders

Orders of the court

1) The application is 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:	Harrison v Treasure [2018] NSWLEC 1190
Hearing dates:	17 April 2018
Date of orders:	17 April 2018
Decision date:	17 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; obstruction of views; trees are not planted so as to form a hedge; obstruction not severe; reasons not to interfere with the trees would outweigh those for making orders.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Johnson & ors v Angus & anor [2012] NSWLEC 1207 Johnson v Angus [2012] NSWLEC 192
Category:	Principal judgment
Parties:	Lea Harrison (Applicant) Jane Treasure (Respondent)
Representation:	L Harrison, litigant in person (Applicant) J Treasure, litigant in person (Respondent)
File Number(s):	17/379803
Publication restriction:	No