Koumoukelis v Zaglas [2018] NSWLEC 1696

Koumoukelis v Zaglas [2018] NSWLEC 1696

The Part 2 claim failed because, although bamboo roots were present in the applicant's soil, the evidence did not establish consequential property damage within the Act; root accumulation impairing lawn growth and soil drying did not constitute actionable damage, ordinary maintenance measures had not been attempted,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 December 2018
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Bamboo Root Damage and High Hedges Obstructing Views / Hearing and Final Orders
Outcome
Part 2 application refused; Part 2A application granted with pruning, access and cost orders.
Legal Topics
['high Hedges' 'views' 'privacy' 'alleged Root Damage to Lawn' 'bamboo']
['trees Disputes Between Neighbours' 'land and Environment'] ['high Hedges' 'views' 'privacy' 'alleged Root Damage to Lawn' 'bamboo']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Bamboo Root Damage and High Hedges Obstructing Views / Hearing and Final Orders

Legal Issues

  1. 1 ["Whether bamboo roots encroaching from the respondent's land caused damage to the applicant's property within Part 2 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the bamboo plantings formed hedges within Part 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the hedges severely obstructed views from the applicant's dwelling." "Whether the applicant's interest in removing, remedying or restraining the view obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the hedges."]

Ratio Decidendi

The Part 2 claim failed because, although bamboo roots were present in the applicant's soil, the evidence did not establish consequential property damage within the Act; root accumulation impairing lawn growth and soil drying did not constitute actionable damage, ordinary maintenance measures had not been attempted, and discretionary considerations weighed against intervention. The Part 2A claim succeeded because the bamboo rows were hedges exceeding 2.5 metres, they severely obstructed valued water views from the applicant's sunroom and veranda, and pruning could restore the views while preserving much of the respondent's privacy, sun protection and landscape amenity.

Court Disposition

Part 2 application refused; Part 2A application granted with pruning, access and cost orders.

Orders

  • ['The application in relation to Part 2 under s 7 of the Act is refused.' 'The application in relation to Part 2A under s 14B of the Act is granted.' "Prune the hedge growing inside the respondent's northern boundary to a height of no more than four metres above the applicant's adjacent surface level, and maintain...