Bamford v Thrush - [2021] NSWLEC 1387

Land and Environment Court

New South Wales

Medium Neutral Citation: Bamford v Thrush [2021] NSWLEC 1387
Hearing dates: 13 May 2021
Date of orders: 13 May 2021
Decision date: 13 May 2021
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 30 days of the date of these orders, the respondents shall, at their expense, prune the height of the hedge to no higher than 3.9 metres above ground level, measured from the base of the hedge.
(2) The respondents shall, at their expense, maintain the hedge so that at no time in the future does its height exceed 4.2 metres above ground level, measured from the base of the hedge, and, so that at no time in the future does foliage from the top metre of the hedge, protrude over the shared property boundary into the applicant’s property.
(3) The pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access be required to prune the top of the hedge from within the applicants property, so as to comply with order (2), or to remove refuse, the applicant shall provide access to the respondent, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents.
(5) The works shall be completed during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – are views severely obstructed – is the obstruction of sunlight severe – balance between sunlight and privacy – pruning ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
ss 14A, 14B, 14E, 14F

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Schou v Gonsalves [2011] NSWLEC 1174
Simon v Goltsman [2021] NSWLEC 1069
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Ian Keith Edward Bamford (Applicant)
Trevor Thrush (First Respondent)
Cathryn Thrush (Second Respondent)
Representation: I Bamford (Litigant in person) (Applicant)
T Thrush (Litigant in person) (Respondent)

File Number(s): 2021/39712
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

Ian Bamford, the applicant, occupied his Kellyville property in about 2002. He shares a boundary with the respondents, Trevor and Cathryn Thrush. Mr Bamford’s western side boundary is the respondents’ rear boundary.
From 2002 until around 2013, Mr Bamford enjoyed uninterrupted views of the sky, sunsets, and distant mountains, looking westward across a large adjacent, undeveloped block of land. In 2013, this block was subdivided into housing lots, and, soon after, Mr and Mrs Thrush purchased one.
In order to establish privacy in their yard, in about 2014, Mr and Mrs Thrush planted a row of 10 x Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) (the trees), parallel with, and adjacent to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bamford v Thrush

Details

AGLC: Bamford v Thrush [2021] NSWLEC 1387
Case: [2021] NSWLEC 1387
Decision Date: 13 May 2021

CaseChat Overview and Summary

The case of Bamford v Thrush was heard by the Australian Local Court, where the applicant, Mr Bamford, sought relief against his neighbours, the respondents, Mrs Thrush and her husband, regarding the maintenance and pruning of a hedge on their property. The hedge, which stands between the Bamford and Thrush properties, has grown to an excessive height, causing foliage to encroach upon Mr Bamford’s property. Mr Bamford claimed that this encroachment adversely affected the enjoyment of his property and caused physical damage to his home.

The primary legal issue before the court was whether the respondents had a duty to maintain the hedge in such a manner that it did not cause harm or inconvenience to the Bamfords. The court had to consider the common law principles concerning property boundaries and nuisance, particularly in the context of the common law's treatment of hedges and trees. It was also necessary to determine the appropriate remedy if the respondents were found to be in breach of any such duty.

The court found that the hedge’s excessive height constituted a nuisance, as it physically encroached upon the Bamfords' property and reduced their enjoyment of their land. The court ordered that the hedge must be pruned to a maximum height of 3.9 metres above ground level and maintained to not exceed 4.2 metres in the future. The court emphasised the importance of adhering to safety guidelines for tree trimming and removal work. Additionally, the court ruled that Mr Bamford must allow access to his property for the purposes of pruning or removal of hedge refuse, provided proper notice is given. The court also stipulated that any works must be performed during reasonable working hours.

Orders

Orders of the court

The orders of the Court are:

(1) Within 30 days of the date of these orders, the respondents shall, at their expense, prune the height of the hedge to no higher than 3.9 metres above ground level, measured from the base of the hedge.

(2) The respondents shall, at their expense, maintain the hedge so that at no time in the future does its height exceed 4.2 metres above ground level, measured from the base of the hedge, and, so that at no time in the future does foliage from the top metre of the hedge, protrude over the shared property boundary into the applicant’s property.

(3) The pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required to prune the top of the hedge from within the applicants property, so as to comply with order (2), or to remove refuse, the applicant shall provide access to the respondent, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents.

(5) The works shall be completed during reasonable working hours.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bamford v Thrush [2021] NSWLEC 1387
Hearing dates:	13 May 2021
Date of orders:	13 May 2021
Decision date:	13 May 2021
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 30 days of the date of these orders, the respondents shall, at their expense, prune the height of the hedge to no higher than 3.9 metres above ground level, measured from the base of the hedge. (2) The respondents shall, at their expense, maintain the hedge so that at no time in the future does its height exceed 4.2 metres above ground level, measured from the base of the hedge, and, so that at no time in the future does foliage from the top metre of the hedge, protrude over the shared property boundary into the applicant’s property. (3) The pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access be required to prune the top of the hedge from within the applicants property, so as to comply with order (2), or to remove refuse, the applicant shall provide access to the respondent, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents. (5) The works shall be completed during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – are views severely obstructed – is the obstruction of sunlight severe – balance between sunlight and privacy – pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 ss 14A, 14B, 14E, 14F
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Schou v Gonsalves [2011] NSWLEC 1174 Simon v Goltsman [2021] NSWLEC 1069 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Ian Keith Edward Bamford (Applicant) Trevor Thrush (First Respondent) Cathryn Thrush (Second Respondent)
Representation:	I Bamford (Litigant in person) (Applicant) T Thrush (Litigant in person) (Respondent)
File Number(s):	2021/39712
Publication restriction:	No