Palmer v Elias [2022] NSWLEC 1671

Palmer v Elias [2022] NSWLEC 1671

The bamboo was planted in a linear configuration close to the common boundary, comprised a hedge within s 14A(1), and averaged about 7 m high. The applicant had made a reasonable effort to reach agreement. The hedge severely obstructed bushland views from the applicant's main living area and balcony across the rear boundary, particularly where those views were most valued, and its severe obstruction justified intervention after balancing the respondents' privacy and amenity interests. The bamboo also caused minor gutter damage and was likely in the near future to cause further damage unless pruned. Pruning to a height 500mm above the upper surface of the applicant's concrete balcony floor...

Jurisdiction
Australia
Judgment Date
15 September 2022
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
Orders made requiring pruning and ongoing maintenance of the bamboo hedge; removal of the bamboo was not ordered.
Legal Topics
['high Hedges' 'view Obstruction' 'damage to Guttering' 'balancing Views and Privacy' 'pruning Orders']
['trees Disputes' 'neighbour Disputes' 'land and Environment'] ['high Hedges' 'view Obstruction' 'damage to Guttering' 'balancing Views and Privacy' 'pruning Orders']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the bamboo planted on the respondents' land formed a hedge for the purposes of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006." "Whether the bamboo hedge severely obstructed views from the applicant's dwelling." 'Whether the applicant made a reasonable effort to reach agreement with the respondents before orders were made.' 'Whether the severity and nature of the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the bamboo.' "Whether the bamboo had caused, was causing, or was likely in the near future to cause damage to the applicant's property under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The bamboo was planted in a linear configuration close to the common boundary, comprised a hedge within s 14A(1), and averaged about 7 m high. The applicant had made a reasonable effort to reach agreement. The hedge severely obstructed bushland views from the applicant's main living area and balcony across the rear boundary, particularly where those views were most valued, and its severe obstruction justified intervention after balancing the respondents' privacy and amenity interests. The bamboo also caused minor gutter damage and was likely in the near future to cause further damage unless pruned. Pruning to a height 500mm above the upper surface of the applicant's concrete balcony floor...

Court Disposition

Orders made requiring pruning and ongoing maintenance of the bamboo hedge; removal of the bamboo was not ordered.

Orders

  • ["Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant's concrete balcony floor." "During the last 14 days of March 2023 and during the...