Ferguson v Horton

[2024] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ferguson v Horton [2024] NSWLEC 1159

Hearing dates:

30 January 2024

Date of orders:

30 January 2024

Decision date:

30 January 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedge removed before hearing – do bananas form a hedge – if so, does hedge severely obstruct a view from a dwelling – damage to fence and unreasonable maintenance burden

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2 ss 7, 8, 9, 10, 12

Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F

Trees (Disputes between Neighbours) Regulation 2014, cl 4

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Haindl v Daisch [2011] NSWLEC 1145

Johnson v Angus (2012) 190 LGERA334; [2012] NSWLEC 192

Robinson v Nagle [2021] NSWLEC 1356

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Welsh v Radford [2023] NSWLEC 1095

Wisdom v Payn [2011] NSWLEC 1012

Zarate v Horton [2023] NSWLEC 1375

Category:

Principal judgment

Parties:

Susan Ferguson (Applicant)
Anthea Denise Horton (First Respondent)
Gary Croydon Horton (Second Respondent)

Representation:

Counsel:
S Ferguson (Self-represented) (Applicant)
J Burrell (Solicitor) (Respondents)

Solicitors:
Burrell Solicitors (Respondents)

File Number(s):

2023/347989

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.

1. This is an application by Susan Ferguson, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) and s 14B of Pt 2A of the Act. Ms Ferguson seeks orders for removal of a bamboo hedge to remedy severe obstruction of views from her dwelling, to prevent bamboo from damaging a boundary fence, and to limit the burden and cost of property maintenance.

Background

2. Anthea and Gary Horton, the respondents, have owned and occupied a large residential block in Bangalow in northern NSW since 2022. The respondents’ land is an irregular shape which extends along a waterway behind their dwelling and borders about five neighbours.

3. In 2020, the previous owner of the respondents’ property had extensively planted Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo) to form garden rooms at the front of the dwelling, landscape features, and privacy screens along boundaries with neighbours.

4. In January 2021, Susan Ferguson, the applicant, purchased a neighbouring property that shared a rear boundary with the respondents’ land. Initially, Ms Ferguson enjoyed broad views across the respondents’ land from her rear deck and living area and she claimed this had strongly influenced her purchase.

5. In her Application Claim Details for High Hedges (Form G), Ms Ferguson acknowledged being aware of the bamboo along the common boundary when she purchased her property but noted the bamboo was below the 1.8 metre (m) boundary fence. The bamboo thrived in ideal conditions provided by fertile volcanic soils and above average rainfall, however, and rapidly obstructed the applicant’s view.

6. In response to an…