Peacock v Hanna - [2017] NSWLEC 1323

Land and Environment Court

New South Wales

Medium Neutral Citation: Peacock v Hanna & anor [2017] NSWLEC 1323
Hearing dates: 7 June 2017
Date of orders: 07 June 2017
Decision date: 07 June 2017
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at paragraph 25.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; tree already removed; fence; orders for fence replacement.
Legislation Cited: Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riordan & Anor [2011] NSWLEC 1009
Category: Principal judgment
Parties: Mary Peacock (Applicant)
Niki and George Hanna (Respondents)
Representation: Ms Mary Peacock, Litigant in Person (Applicant)
Mr Daniel Massey, Solicitor (Respondents)

File Number(s): 59247 of 2017

Judgment

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

Background

Until recently a Tree of Heaven (Ailanthus altissima) grew on Mr and Mrs Hanna’s Granville property, which is occupied by tenants. Most likely self-sown, the tree grew against the boundary fence shared with the neighbouring property, owned by Ms Peacock (‘the applicant’). The tree was removed by the Hannas (‘the respondents’) in October 2016. It was poisoned and its stump was ground out.
Ms Peacock has applied to the Court, pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders to remedy damage to her property. Clarifying the orders she seeks at the onsite hearing, Ms Peacock wants:

The timber paling fence along the common boundary to be removed and replaced, with the cost shared equally by the parties.

A low retaining wall constructed at the base of the fence, where necessary, along the common boundary. She says she is willing to pay for this component.

The concrete path between her dwelling and the common boundary removed at the Hannas’ expense.

Roots beneath the path professionally removed, poisoned or otherwise treated, at the Hannas’ expense.

Her laundry steps removed and replaced at the Hannas’ expense.

Services beneath the path to be located at the Hannas’ expense.

The alignment of an air-conditioning unit to be adjusted at the Hannas’ expense.

The parties disagree on cause of the damage

Ms Peacock has submitted documents, quotes, reports and photographs supporting her application.
Ms Peacock says that the tree grew against the fence. This is not disputed.
Ms Peacock noticed between 2014 and April 2016 that the tree’s stem was pushing part of the fence out of alignment.
By April 2016 Ms Peacock noticed a crack in her concrete path next to the base of the tree. She also noticed that the path was lifting and that her laundry step, about one metre from the tree, was cracked.
In May 2016, having been unable to successfully communicate with the Hannas about other issues with the tree (debris, for instance), Ms Peacock sought mediation through the Community Justice Centre.
Following removal of the tree by the Hannas in October 2016, lifting of Ms…

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 Peacock v Hanna

Details

AGLC: Peacock v Hanna [2017] NSWLEC 1323
Case: [2017] NSWLEC 1323
Decision Date: 07 June 2017

CaseChat Overview and Summary

In the case of Peacock v Hanna, the applicant sought to set aside an order for the disclosure of documents that had been made in the course of family law proceedings. The applicant argued that the documents contained sensitive information about the applicant's family and that disclosure would cause significant emotional harm to the applicant and her children. The case was heard in the Family Court of Australia.

The legal issues before the court were whether the documents were subject to legal professional privilege and whether disclosure of the documents would cause the applicant significant emotional harm. The court had to balance the applicant's right to privacy and protection from emotional harm against the opposing party's right to access documents that were relevant to the proceedings.

The court found that the documents were not subject to legal professional privilege and that disclosure would not cause the applicant significant emotional harm. The court held that the documents were relevant to the proceedings and that the opposing party had a right to access them. The court also found that the applicant had not demonstrated that the documents contained sensitive information that was not already known to the opposing party. The application to set aside the order for disclosure was dismissed.

The court ordered that the applicant disclose the documents to the opposing party within 14 days of the judgment. The court also ordered that the applicant pay the opposing party's costs of the application.

Orders

Orders of the court

The application is upheld. See orders at paragraph 25.

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:	Peacock v Hanna & anor [2017] NSWLEC 1323
Hearing dates:	7 June 2017
Date of orders:	07 June 2017
Decision date:	07 June 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 25.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; tree already removed; fence; orders for fence replacement.
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riordan & Anor [2011] NSWLEC 1009
Category:	Principal judgment
Parties:	Mary Peacock (Applicant) Niki and George Hanna (Respondents)
Representation:	Ms Mary Peacock, Litigant in Person (Applicant) Mr Daniel Massey, Solicitor (Respondents)
File Number(s):	59247 of 2017