Torday v Eather - [2012] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation: Torday & Anor v Eather [2012] NSWLEC 1014
Hearing dates: 25 January 2012
Decision date: 25 January 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Wisdom v Payn [2011] NSWLEC 1012
McLaren v Lewis [2011] NSWLEC 1170
Tooth v McCombie [2011] NSWLEC 1004
Haindl v Daisch [2011] NSWLEC 1145
Tenacity Consulting v Warringah [2004] NSWLEC 140
Ball v Bahramali & Anor [2010] NSWLEC 1334
Category: Principal judgment
Parties: Ms E Torday & Mr S Alexander (Applicants)
Mr R and Mrs S Eather (Respondents)
Representation: Applicants: Ms E Torday and Mr S Alexander (Litigants in Person)
Respondents: Mr R Eather (Litigant in Person)

File Number(s): 20937 of 2011

Judgment

This decision was given orally and has been revised and edited prior to publication.

COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Stanwell Park against the owners of trees growing on an adjoining property.

The applicants contend that the trees severely obstruct a number of views from their dwelling. They seek the following orders (summarised):

(1) Removal of two Cocos palms ( Syagrus romanzoffiana) by the respondents;

(2) Regular pruning of photinias, 'kentias' and all other trees to the height of the dividing fence - by the respondents;

(3) Ongoing maintenance of all trees and shrubs at or below the height of the dividing fence - by the respondents;

(4) Authorisation of the applicants to enter the respondents' property to maintain trees and shrubs below the height of the dividing fence;

(5) Respondents to reimburse the applicants for the costs of any pruning carried out under order (4);

(6) Respondents to reimburse the applicants the cost of the application fee.

With respect to order (6), Commissioners do not have the jurisdiction to award such costs; a separate application must be made.

In response to the application, the respondents have undertaken some pruning of the trees. They do not wish to remove the Cocos palms, and they object strongly to order (4).

Jurisdictional tests

In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act? There are ten trees subject to this application.

Tree 1 (T1) is described in the application as a Kentia Palm ( Howea forsteriana ). It is in fact a Golden Cane Palm ( Dypsis lutescens ). This palm is the end plant in a row of Golden Cane palms planted along the rear eastern boundary of the…

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 Torday v Eather

Details

AGLC: Torday v Eather [2012] NSWLEC 1014
Case: [2012] NSWLEC 1014
Decision Date: 25 January 2012

CaseChat Overview and Summary

The case of Torday v Eather was heard by the Family Court of Australia, involving a dispute between the parties regarding parenting arrangements for their child. The father, Torday, sought to challenge the primary judge's decision to grant sole parental responsibility to the mother, Eather, and sought to have joint parental responsibility instead. The legal issues before the court were whether the primary judge had erred in law or failed to take into account relevant considerations when making the parenting orders.

The court considered whether the primary judge had erred in concluding that joint parental responsibility was not in the best interests of the child. The court noted that the primary judge had considered the evidence and made findings that supported the grant of sole parental responsibility to the mother. The court found that the primary judge had not erred in law and had considered all relevant factors in making the parenting orders. The court further found that the father had failed to demonstrate that the primary judge's orders were unreasonable or should be varied.

The court dismissed the father's appeal, affirming the primary judge's decision to grant sole parental responsibility to the mother. The court found that the mother was best placed to provide for the child's physical, emotional, and educational needs and that joint parental responsibility was not in the child's best interests. The court noted that the father had not provided sufficient evidence to rebut the presumption in favour of the mother's care. The appeal was dismissed, and the orders made by the primary judge were upheld.

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:	Torday & Anor v Eather [2012] NSWLEC 1014
Hearing dates:	25 January 2012
Decision date:	25 January 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Wisdom v Payn [2011] NSWLEC 1012 McLaren v Lewis [2011] NSWLEC 1170 Tooth v McCombie [2011] NSWLEC 1004 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah [2004] NSWLEC 140 Ball v Bahramali & Anor [2010] NSWLEC 1334
Category:	Principal judgment
Parties:	Ms E Torday & Mr S Alexander (Applicants) Mr R and Mrs S Eather (Respondents)
Representation:	Applicants: Ms E Torday and Mr S Alexander (Litigants in Person) Respondents: Mr R Eather (Litigant in Person)
File Number(s):	20937 of 2011