Day v Acton [2022] NSWLEC 1461

Day v Acton [2022] NSWLEC 1461

The Applicants made reasonable efforts to reach agreement. The bamboo on the Respondent's land had grown against and contributed to damage to the common boundary fence, so orders under Pt 2 were warranted requiring removal of the bamboo along the common boundary and replacement of the fence with costs shared. The Pt 2A application was refused because the pruned bamboo did not severely obstruct a view from the Applicants' property and ongoing pruning orders were unnecessary.

Jurisdiction
Australia
Judgment Date
01 September 2022
Procedural Posture
Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing and Telephone Hearings
Outcome
The Pt 2A application was refused and the Pt 2 application was granted to the extent of orders for removal of bamboo along the common boundary and replacement of the boundary fence.
Legal Topics
['neighbouring Bamboo Hedge' 'damage to Boundary Fence' 'reasonable Effort to Reach Agreement' 'obstruction of Views' 'removal and Pruning of Trees']
['trees Disputes Between Neighbours' 'dividing Fences' 'land and Environment Court Proceedings'] ['neighbouring Bamboo Hedge' 'damage to Boundary Fence' 'reasonable Effort to Reach Agreement' 'obstruction of Views' 'removal and Pruning of Trees']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing and Telephone Hearings

Legal Issues

  1. 1 ['Whether the Applicants made a reasonable effort to reach agreement with the Respondent before orders could be made under Pt 2 and Pt 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether bamboo on the Respondent's land caused, was causing, or was likely in the near future to cause damage to the Applicants' property, including the boundary fence." 'Whether the bamboo along the common boundary should be removed and the boundary fence replaced.' "Whether the bamboo hedge severely obstructed a view from the Applicants' dwelling so as to justify orders under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The Applicants made reasonable efforts to reach agreement. The bamboo on the Respondent's land had grown against and contributed to damage to the common boundary fence, so orders under Pt 2 were warranted requiring removal of the bamboo along the common boundary and replacement of the fence with costs shared. The Pt 2A application was refused because the pruned bamboo did not severely obstruct a view from the Applicants' property and ongoing pruning orders were unnecessary.

Court Disposition

The Pt 2A application was refused and the Pt 2 application was granted to the extent of orders for removal of bamboo along the common boundary and replacement of the boundary fence.

Orders

  • ['The Pt 2A application is refused.' 'The Pt 2 application is granted to the extent of the following orders.' "Within 30 days of the date of these orders, the Respondent is to remove, or engage and pay for a contractor to remove, all bamboo along that part of the Respondent's rear boundary that is the common...