Bowen v Duan

[2018] NSWLEC 1189

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bowen v Duan [2018] NSWLEC 1189
Hearing dates:	16 April 2018
Date of orders:	16 April 2018
Decision date:	16 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; bamboo; obstruction of sunlight and views; trees pruned prior to hearing; applicant says there is no longer a severe obstruction; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Elizabeth Bowen (Applicant) Jia Duan (Respondent)
Representation:	Solicitors A Gadiel, Mills Oakley (Applicant) S Corbett, Etheringtons Solicitors (Respondent)
File Number(s):	17/366564
Publication restriction:	Nil

Judgment

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

1. This application concerns a neighbouring bamboo hedge obstructing sunlight and views. An onsite hearing was scheduled for today, a Monday.

2. At the outset of the hearing Mr Gadiel, the applicant’s solicitor, stated that the bamboo has been pruned and no longer causes a severe obstruction of sunlight or views. He offered to discontinue. Ms Corbett, the respondent’s solicitor, would not agree to the matter being discontinued, arguing that having the matter dealt with, and dismissed, would allow her client to consider the matter of costs.

3. Ms Corbett opined that the respondent pruned the hedge last week and that the affidavit of the applicant’s tenant (filed at 4:14 pm last Friday) informed the applicant of the extent of pruning. She argued that the applicant should have discontinued the matter late on Friday, avoiding additional costs for the respondent since then. She said there were videos sent to the applicant’s solicitor around 7:00 pm on Friday.

4. Mr Gadiel stated that only some of the pruning was done by late on Friday, and that the respondent completed the pruning over the weekend. The applicant was unconvinced on Friday that all windows in the application remained unaffected by the bamboo. The applicant had insufficient opportunity to discontinue.

5. The application will be dismissed, as there is no severe obstruction at the time of the hearing. Since the application was filed on 4 December 2017, the respondent had more than four months to address the issue. The applicant has clearly incurred some costs during this period. The respondent has dealt with the hedge and notified the applicant after 5:00 pm on the Friday before the hearing. I find Ms Corbett’s suggestion that the respondent may wish to pursue costs somewhat incredible. Had the respondent pruned the bamboo earlier, giving the applicant more time to discontinue, the resources required for today’s onsite hearing may have been unnecessary.

Orders

6. The orders of the Court are:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 19 April 2018