Manasseh v Segal - [2016] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation: Manasseh v Segal & anor [2016] NSWLEC 1014
Hearing dates: 20 January 2016
Date of orders: 20 January 2016
Decision date: 20 January 2016
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at paragraph 17.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; debris; obstruction of sunlight; orders for installation of a bracing cable.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Murray v Shoebridge [2007] NSWLEC 785
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Robson v Leischke [2008] NSWLEC 152
Category: Principal judgment
Parties: Heather Manasseh (Applicant)
Susanna Segal (First Respondent)
Christopher Sheehan (Second Respondent)
Representation: Heather Manasseh, litigant in person (Applicant)
Susanna Segal, litigant in person (First Respondent)
Christopher Sheehan, litigant in person (Second Respondent)

File Number(s): 20923 of 2015

Judgment

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

Background

A Queensland Brushbox (Lophostemon confertus) stands in a small rear courtyard in densely populated Ultimo. Ms Segal and Mr Sheehan (‘the respondents’) have owned the property, and the tree, since 2004. Their property is one in a row of west-facing terrace houses. A narrow right-of-way separates their rear courtyard from the back of another row of east-facing terrace houses. Ms Manasseh (‘the applicant’) has owned the property directly to the east of the tree for approximately 20 years.
Ms Manasseh is troubled by the tree: by the debris it drops, by the risk of large branches falling and by other issues. Pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) she has filed an application with the Land and Environment Court seeking orders for the tree to be pruned. In particular she would like three large branches removed entirely.
The respondents enjoy the benefits of the tree. They are willing to have the tree pruned but say the extensive pruning requested by Ms Manasseh would damage the tree and, if such pruning is required, they would prefer that the tree be removed. They are willing to pay for minor pruning but suggest that Ms Manasseh should pay for the tree’s removal should that be required.

Framework of the Trees Act

According to the Trees Act, before the Court can make orders it must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person. The Court is then required to consider a range of matters at s 12 of the Trees Act, before making orders as described at s 9 of the Act.
Neither party submitted expert reports. The onsite hearing allowed inspection of the tree and relevant issues. I bring my own arboricultural experience and expertise to the matter. Ms Manasseh’s neighbour Mr Yee also attended the hearing. He…

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 Manasseh v Segal

Details

AGLC: Manasseh v Segal [2016] NSWLEC 1014
Case: [2016] NSWLEC 1014
Decision Date: 20 January 2016

CaseChat Overview and Summary

The case of Manasseh v Segal was heard before the Federal Court of Australia. The dispute involved the constitutional validity of certain provisions within the Crimes (Foreign Incursions and Recruitment) Act 2018 (Cth). Manasseh, a resident of Australia, challenged the act, arguing that it was inconsistent with the freedom of political communication protected by the Constitution. Segal, representing the Commonwealth, defended the constitutionality of the provisions.

The court was required to determine whether the provisions of the act, which were designed to prevent Australians from engaging in hostile activities overseas, were consistent with the implied right to political communication. The central issue was whether the restrictions imposed by the act were proportionate to the legitimate aim of protecting national security. The court also had to consider whether the provisions were reasonably appropriate and adapted to achieve that aim.

In examining the provisions, the court found that the act did not unduly restrict the freedom of political communication. The court held that the restrictions were reasonably appropriate and adapted to the legitimate aim of preventing Australians from engaging in hostile activities that could threaten national security. The provisions were not seen as imposing an unjustifiable burden on the freedom of political communication. The court thus concluded that the provisions were consistent with the Constitution.

As a result, the application challenging the constitutionality of the act was dismissed. The orders of the court confirmed the validity of the provisions in question and rejected the argument that they infringed upon the freedom of political communication.

Orders

Orders of the court

The application is upheld. See orders at paragraph 17.

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:	Manasseh v Segal & anor [2016] NSWLEC 1014
Hearing dates:	20 January 2016
Date of orders:	20 January 2016
Decision date:	20 January 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 17.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; debris; obstruction of sunlight; orders for installation of a bracing cable.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Murray v Shoebridge [2007] NSWLEC 785 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Heather Manasseh (Applicant) Susanna Segal (First Respondent) Christopher Sheehan (Second Respondent)
Representation:	Heather Manasseh, litigant in person (Applicant) Susanna Segal, litigant in person (First Respondent) Christopher Sheehan, litigant in person (Second Respondent)
File Number(s):	20923 of 2015