Carter v MKTK Pty Ltd

[2021] NSWLEC 1787

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carter v MKTK Pty Ltd [2021] NSWLEC 1787

Hearing dates:

15 September 2021

Date of orders:

22 December 2021

Decision date:

22 December 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [50]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – neighbouring bamboo – whether the bamboo has caused damage to the applicant’s property – Pt 2A application concerning obstruction of sunlight – whether sunlight to a window is obstructed – benefits of the bamboo – balancing interests of the parties – orders for pruning bamboo and installing a root barrier

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10 & 12, Pt 2A ss 14B, 14D, 14E & 14F

Cases Cited:

McDougall v Philip [2011] NSWLEC 1280

Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215

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

Steber v Job [2019] NSWLEC 1308

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Newcastle Development Control Plan 2012

Category:

Principal judgment

Parties:

Rainnie Carter (Applicant)
MKTK Pty Ltd (Respondent)

Representation:

R Carter (Litigant in Person) (Applicant)
P Kilmurray (Solicitor) (Respondent)

Solicitors
Peter Kilmurray Lawyers (Respondent)

File Number(s):

2021/165823

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: Rainnie Carter (‘the applicant’) purchased her Stockton property in 2014, next door to the Gladstone Hotel (‘the hotel’). Ms Carter has become aware of several issues while living next door to the hotel, some of which she has been able to resolve, others not. Mark Keegan is the director of MKTK Pty Ltd (‘the respondent’), the company that owns the hotel. Other proceedings involving Ms Carter and Mr Keegan apparently remain afoot in another Court. Mentioned by Mr Keegan, those proceedings are only relevant here in that they reflect the state of the relationship between the parties and might therefore influence how, if orders are to be made, any works might be ordered so as to minimise the potential for future conflict between the parties.

2. Ms Carter has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders relating to bamboo on the hotel’s land next to their common boundary. She seeks orders for the respondent to remove all bamboo within both the hotel’s grounds and her property, and restrictions on any future planting along the common boundary.

The hearing

3. The matter was heard via MS Teams. Ms Carter was self-represented, while Mr Kilmurray represented the respondent. John Atkins, a consulting arborist who prepared a report (Exhibit D) for Ms Carter, was cross-examined on his report. With the material filed by both parties, considered along with their oral and written submissions, I was able to make a decision without requiring a subsequent site view.

The bamboo

4. A thick hedge of bamboo grows on the respondent’s property next to…