Bogan v Serrao

[2023] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bogan v Serrao [2023] NSWLEC 1517

Hearing dates:

17 May 2023

Date of orders:

17 May 2023

Decision date:

17 May 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [64].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is hedge severely obstructing sunlight to a window of a dwelling – are trees causing damage to applicants’ property – do s 12 considerations outweigh impact of damage

Legislation Cited:

Dividing Fences Act 1991

Environmental Planning and Assessment Act 1979

Heritage Act 1977

Native Vegetation Act 2003

Trees (Disputes between Neighbours) Act 2006, Pts 2, 2A, ss 7, 8, 9, 10, 12, 14A, 14B, 14C, 14D, 14E, 14F

Trees (Disputes between Neighbours) Regulation 2014, s 4

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152

Wisdom v Payn [2011] NSWLEC 1012

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Category:

Principal judgment

Parties:

Paul Bogan (First Applicant)
Patricia Bogan (Second Applicant)
Jose Serrao (First Respondent)
Melissa Serrao (Second Respondent)

Representation:

P Bogan, Self-represented (First Applicant)
P Bogan, Self-represented (Second Applicant)
J Serrao, Self-represented (First Respondent)
M Serrao, Self-represented (Second Respondent)

File Number(s):

2023/82631

Publication restriction:

Nil

JUDGMENT

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

Background

1. Paul and Patricia Bogan, the applicants, own and occupy a property in Boat Harbour, near Port Stevens, which gains filtered sunlight through the canopies of large remnant Melaleuca quinquenervia (Broad leafed Paperbark) trees sparsely spread around their and their side neighbours’ yards.

2. After owning their land for about 35 years, Mr and Mrs Bogan built a two-storey dwelling, which they occupied about five years ago. The dwelling has a veranda on the upper level that allows oversight of the respondents’ neighbouring land and dwelling.

3. To establish and maintain privacy, particularly for their now teenage children, and to enhance the aesthetics of their garden, the respondents, Jose and Melissa Serrao, planted a hedge of Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo) along the parties’ common rear boundary, which is oriented north-south.

4. Once established, the bamboo caused increasing problems for the applicants, who claimed that the bamboo is damaging the common boundary metal panel fence through wind induced movement and is causing an unreasonable maintenance burden and fire risk from dry leaves and leaf sheaths falling and blowing onto the applicants’ adjacent shed roof and gutters, and onto the ground. Mr and Mrs Bogan also claimed that the bamboo is a hedge which blocks sunlight to a window of a workshop/shed.

5. The applicants requested that the respondents prune and maintain the bamboo at the common fence height or remove the bamboo…