Reed & anor v Mason & anor [2013] NSWLEC 1159

Reed & anor v Mason & anor [2013] NSWLEC 1159

The bamboo had caused damage to one panel of the dividing fence, and because the fence separated adjoining lands the Court's jurisdiction under s 13A of the Dividing Fences Act 1991 was engaged notwithstanding that the fence was 100mm inside the respondents' land. The appropriate fencing orders were limited to replacement of the single damaged panel, re-setting its posts, removal of nearby bamboo shoots, shared costs, and ongoing bamboo maintenance. The Part 2A view claim failed because, although the trees formed hedges to which Part 2A applied, the current obstruction of the applicants' Burraneer Bay views was negligible to minor compared with the filtered views existing when the...

Jurisdiction
Australia
Judgment Date
23 August 2013
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 and S 13 a of the Dividing Fences Act 1991 / Principal Judgment
Outcome
Application pursuant to s 13A of the Dividing Fences Act 1991 upheld; application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 dismissed.
Legal Topics
['damage to Dividing Fence by Bamboo' 'jurisdiction Under S 13 a of the Dividing Fences Act 1991' 'hedge Obstruction of Views' 'amendment of Application' 'costs Sharing for Fencing Work']
['land and Environment' 'trees Disputes Between Neighbours' 'dividing Fences'] ['damage to Dividing Fence by Bamboo' 'jurisdiction Under S 13 a of the Dividing Fences Act 1991' 'hedge Obstruction of Views' 'amendment of Application' 'costs Sharing for Fencing Work']

Case Brief

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 and S 13 a of the Dividing Fences Act 1991 / Principal Judgment

Legal Issues

  1. 1 ['Whether leave should be granted to amend the application to rely on s 13A of the Dividing Fences Act 1991.' "Whether bamboo on the respondents' property damaged a dividing fence and engaged the Court's jurisdiction under s 13A of the Dividing Fences Act 1991." 'What fencing and vegetation management orders should be made for the damaged fence panel.' "Whether the respondents' trees formed a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applied." "Whether the hedge severely obstructed a view from the applicants' dwelling within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The bamboo had caused damage to one panel of the dividing fence, and because the fence separated adjoining lands the Court's jurisdiction under s 13A of the Dividing Fences Act 1991 was engaged notwithstanding that the fence was 100mm inside the respondents' land. The appropriate fencing orders were limited to replacement of the single damaged panel, re-setting its posts, removal of nearby bamboo shoots, shared costs, and ongoing bamboo maintenance. The Part 2A view claim failed because, although the trees formed hedges to which Part 2A applied, the current obstruction of the applicants' Burraneer Bay views was negligible to minor compared with the filtered views existing when the...

Court Disposition

Application pursuant to s 13A of the Dividing Fences Act 1991 upheld; application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 dismissed.

Orders

  • ['The application pursuant to s 13A of the Dividing Fences Act 1991 is upheld.' 'Within 30 days the respondents are to obtain at least 3 quotes for removal and replacement of the single damaged metal fence panel, re-setting support posts to vertical, and removal to ground level of bamboo shoots within 100 mm of the...