Myjavec v Weatherall [2018] NSWLEC 1457

Myjavec v Weatherall [2018] NSWLEC 1457

The Court found it likely that shorter bamboo culms would scrape and visually damage the applicants' wall surface and that taller thick culms would damage their roof guttering when moving in the wind, satisfying s 10(2) of the Trees Act. Because pruning could preserve the respondent's privacy and screening while preventing future damage, removal was unnecessary and annual pruning orders were appropriate.

Jurisdiction
Australia
Judgment Date
22 August 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Orders made requiring the respondent to prune the bamboo initially and annually, with notice to the applicants and access through the applicants' property as required.
Legal Topics
['damage to Property' 'bamboo' 'screening' 'pruning Orders']
['trees Disputes Between Neighbours' 'property'] ['damage to Property' 'bamboo' 'screening' 'pruning Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether the bamboo was likely to cause damage to the applicants' dwelling so as to satisfy the jurisdictional test in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether the appropriate orders should require removal of the bamboo or regular pruning to prevent damage while maintaining screening.']

Ratio Decidendi

The Court found it likely that shorter bamboo culms would scrape and visually damage the applicants' wall surface and that taller thick culms would damage their roof guttering when moving in the wind, satisfying s 10(2) of the Trees Act. Because pruning could preserve the respondent's privacy and screening while preventing future damage, removal was unnecessary and annual pruning orders were appropriate.

Court Disposition

Orders made requiring the respondent to prune the bamboo initially and annually, with notice to the applicants and access through the applicants' property as required.

Orders

  • ["Within 28 days of the date of these orders, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants' property." "The respondent is to give the...