Ferguson v Horton [2024] NSWLEC 1159

Ferguson v Horton [2024] NSWLEC 1159

The Pt 2A application failed because the boundary bamboo had been excavated before the hearing and no longer rose to at least 2.5 metres, the diagonal row of bamboo was not included in the applicant's proposed orders, and the banana clump was not shown to have been planted so as to form a hedge. The Pt 2 application also failed because removal of the boundary bamboo eliminated the likely near-future damage to the boundary fence, ordinary vegetation debris did not provide a basis for relief, and the applicant elected to manage residual suckers herself.

Jurisdiction
Australia
Judgment Date
30 January 2024
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Onsite Final Hearing; Principal Judgment
Outcome
The application was refused.
Legal Topics
['high Hedges' 'bamboo' 'view Obstruction From a Dwelling' 'damage to Boundary Fence' 'unreasonable Maintenance Burden' 'jurisdiction Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'late Tender of Expert Reports and Procedural Fairness']
['trees Disputes Between Neighbours' 'land and Environment' 'property and Neighbour Disputes'] ['high Hedges' 'bamboo' 'view Obstruction From a Dwelling' 'damage to Boundary Fence' 'unreasonable Maintenance Burden' 'jurisdiction Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'late Tender of Expert Reports and Procedural Fairness']

Case Brief

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Onsite Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the boundary bamboo, having been removed before the hearing, satisfied the jurisdictional requirements for Pt 2A of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the clump of banana plants was planted so as to form a hedge for the purposes of s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether any hedge severely obstructed a view from the applicant's dwelling." "Whether remaining bamboo roots, culms or debris caused or were likely in the near future to cause damage to the applicant's property under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether late-filed view assessment and arborist reports should be accepted at the hearing.']

Ratio Decidendi

The Pt 2A application failed because the boundary bamboo had been excavated before the hearing and no longer rose to at least 2.5 metres, the diagonal row of bamboo was not included in the applicant's proposed orders, and the banana clump was not shown to have been planted so as to form a hedge. The Pt 2 application also failed because removal of the boundary bamboo eliminated the likely near-future damage to the boundary fence, ordinary vegetation debris did not provide a basis for relief, and the applicant elected to manage residual suckers herself.

Court Disposition

The application was refused.

Orders

  • ['The application is refused.']