Bogan v Serrao [2023] NSWLEC 1517

Bogan v Serrao [2023] NSWLEC 1517

Bamboo did not cause actionable damage to the shed or fence to date, but is likely to damage the fence in the near future; Part 2A application failed as the obstructed window was not in a dwelling; Orders are made to contain bamboo and repair fence, denying removal or replacement based solely on maintenance burden.

Jurisdiction
Australia
Judgment Date
17 May 2023
Procedural Posture
Tree Dispute Class 2 / Principal Judgment
Outcome
Part 2A application refused; Part 2 application granted in part with specific orders.
Legal Topics
['tree Disputes' 'damage to Fence' 'obstruction of Sunlight' 'privacy' 'maintenance Burden' 'fire Risk']
['property Law' 'environmental Law'] ['tree Disputes' 'damage to Fence' 'obstruction of Sunlight' 'privacy' 'maintenance Burden' 'fire Risk']

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Procedural Posture

Tree Dispute Class 2 / Principal Judgment

Legal Issues

  1. 1 ["Is the bamboo hedge causing damage to the applicants' property?" 'Is the hedge severely obstructing sunlight to a window of a dwelling?' 'Do s 12 considerations outweigh the impact of the damage?']

Ratio Decidendi

Bamboo did not cause actionable damage to the shed or fence to date, but is likely to damage the fence in the near future; Part 2A application failed as the obstructed window was not in a dwelling; Orders are made to contain bamboo and repair fence, denying removal or replacement based solely on maintenance burden.

Court Disposition

Part 2A application refused; Part 2 application granted in part with specific orders.

Orders

  • ['Within 45 days, respondents to prune bamboo to no higher than 3.4 metres.' 'During February annually, respondents to prune bamboo to no higher than 3.4 metres.' 'Pruning works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.' 'Within 60 days, respondents to...