Zarate v Horton [2023] NSWLEC 1375

Zarate v Horton [2023] NSWLEC 1375

The bamboo hedges on the respondents' property, planted close to the boundary, are likely to cause damage to the applicant's property (solar panels/guttering and fence) within 12 months and severely obstruct both sunlight to side windows and principal views from the dwelling. Offers by the respondents to prune or limit height would not reliably address ongoing impacts given past conduct and the nature of bamboo. The negative impact on the applicant outweighs the landscape and privacy benefits to the respondents. The appropriate order is removal of the bamboo within 2 metres of the boundary and restriction on future hedge plantings.

Jurisdiction
Australia
Judgment Date
19 July 2023
Procedural Posture
Tree Dispute (damage and Sunlight/view Obstruction) / Principal Judgment After Hearing
Outcome
Pt 2 and Pt 2A applications granted; orders made for removal of bamboo and future planting restrictions.
Legal Topics
['trees (disputes Between Neighbours) Act Matters' 'damage Caused by Trees' 'obstruction of Sunlight' 'obstruction of Views' 'orders for Tree Removal']
['planning and Environment Law'] ['trees (disputes Between Neighbours) Act Matters' 'damage Caused by Trees' 'obstruction of Sunlight' 'obstruction of Views' 'orders for Tree Removal']

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Procedural Posture

Tree Dispute (damage and Sunlight/view Obstruction) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the bamboo hedges are likely to damage the applicant's property in the near future" "Whether the bamboo severely obstructs sunlight to windows of the applicant's dwelling" "Whether the bamboo severely obstructs views from the applicant's dwelling" 'Appropriate orders under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006']

Ratio Decidendi

The bamboo hedges on the respondents' property, planted close to the boundary, are likely to cause damage to the applicant's property (solar panels/guttering and fence) within 12 months and severely obstruct both sunlight to side windows and principal views from the dwelling. Offers by the respondents to prune or limit height would not reliably address ongoing impacts given past conduct and the nature of bamboo. The negative impact on the applicant outweighs the landscape and privacy benefits to the respondents. The appropriate order is removal of the bamboo within 2 metres of the boundary and restriction on future hedge plantings.

Court Disposition

Pt 2 and Pt 2A applications granted; orders made for removal of bamboo and future planting restrictions.

Orders

  • ['The Pt 2 application is granted.' 'The Pt 2A application is granted.' "The respondents are to engage and pay for a suitably experienced and insured contractor to remove all bamboo from their property and the applicant's property within 2 metres of any common boundary shared with the applicant. These works are to...