Carter v MKTK Pty Ltd [2021] NSWLEC 1787

Carter v MKTK Pty Ltd [2021] NSWLEC 1787

The applicant did not establish that the bamboo had caused or was likely to cause physical damage to property, so no relief was available under Pt 2. However, the evidence demonstrated the bamboo severely obstructed sunlight to the applicant's windows, and the applicant's interests in sunlight access outweighed any undesirability of interfering with the bamboo, warranting orders for pruning and a root barrier under Pt 2A.

Jurisdiction
Australia
Judgment Date
22 December 2021
Procedural Posture
Class 2 Trees (disputes Between Neighbours) / Judgment After Hearing
Outcome
Pt 2 application refused; Pt 2A application granted in part
Legal Topics
['trees (disputes Between Neighbours)' 'damage by Trees' 'obstruction of Sunlight' 'boundary Disputes']
['property Law' 'environmental Law'] ['trees (disputes Between Neighbours)' 'damage by Trees' 'obstruction of Sunlight' 'boundary Disputes']

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Procedural Posture

Class 2 Trees (disputes Between Neighbours) / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the bamboo on the respondent's land caused or is likely to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006" "Whether the bamboo severely obstructs sunlight to a window of the applicant's dwelling under s 14E(2)(a) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether the applicant made reasonable efforts to reach agreement with the respondent before applying to the Court']

Ratio Decidendi

The applicant did not establish that the bamboo had caused or was likely to cause physical damage to property, so no relief was available under Pt 2. However, the evidence demonstrated the bamboo severely obstructed sunlight to the applicant's windows, and the applicant's interests in sunlight access outweighed any undesirability of interfering with the bamboo, warranting orders for pruning and a root barrier under Pt 2A.

Court Disposition

Pt 2 application refused; Pt 2A application granted in part

Orders

  • ['Pt 2 application refused' 'Pt 2A application granted to the extent of the following: within 60 days the respondent is to remove all bamboo within 500 mm of the eastern boundary fence at ground level; install a root barrier to at least 600 mm depth, 400–500 mm from the fence for the hedge length plus 2 metres at...