Geljic v Boyce

[2007] NSWLEC 475

Land and Environment Court

of New South Wales

CITATION:	Geljic v Boyce [2007] NSWLEC 475
PARTIES:	APPLICANT Simo and Kleanki Geljic RESPONDENT Raymond Boyce
FILE NUMBER(S):	20404 of 2007
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- removal of hedge - need to replace dividing fence - damage
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	26/07/06
EX TEMPORE JUDGMENT DATE:	26 July 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Geljic, agent RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

26 July 2007

20404 of 2007 Simo and Kleanki Geljic v Raymond Boyce

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Mr Simo and Ms Kleanki Geljic of 41 Park Road Bowral concerning shrubs located close to the common side boundary of 39 Park Road Bowral owned by Mr Raymond Boyce.

2 The extemporaneous decision was given on site on 27 July 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 Mr and Mrs Geljic’s application is to require the removal of the shrubs adjoining the common boundary as:

• the shrubs have damaged the gutter of their house.
• the shrubs prevent the erection of a new boundary fence adjoining their house, and
• the shrubs are, or are likely to damage the existing boundary fence.

4 The application does not seek compensation.

5 Mr Boyce opposes the removal of the shrubs as the vegetation provides privacy for the dwelling and is consistent with the screening on the other property boundaries. Mr Boyce stated that it was his intention to trim the shrubs to a height of 2 m. Mr Boyce also stated that he did not oppose the trimming of the shrubs adjoining Mr and Mrs Geljic’s property.

6 The shrubs form a continuous hedge around the inside of Mr Boyce's property. Adjoining Mr and Mrs Geljic’s property the hedge is some 3 m in height and touches the guttering of their dwelling. The boundary fencing directly adjoining the dwelling has been damaged and the shrubs in this area do not allow the erection of a new fence proposed in this location. The timber paling fence at the rear of the site is showing signs of being damaged by the shrubs with thick woody stems pressing against the fence. At the front of the site there is considerable growth through the open mesh wire fence.

7 We accept that the shrubs have caused damage to part of the existing boundary fence and would likely cause damage to other parts of the existing boundary fence and guttering of Mr and Mrs Geljic’s dwelling if left unmaintained.

8 Mr and Mrs Geljic were represented by their son, Mr Jim Geljic. He helpfully accepted that if there were sufficient separation between the shrubs and the boundary fence then he would not press for the removal of the shrubs. After some discussion it was agreed that the shrubs should be trimmed, and particularly the woody stems, to a distance of 50 – 100 mm at ground level from the boundary and for a height of 1 m. The remaining area of the shrubs should be trimmed to a distance of 100 – 200 mm from the boundary. The area adjoining Mr and Mrs Geljic’s dwelling is to be maintained to a height of 2 m to avoid possible damage to the guttering in this location. Mr Boyce stated that the works could be undertaken within 14 days.

9 We note the agreement of Mr Boyce that any leaves or branches that extend over the boundary or extend on Mr Boyce’s property beyond the limits set out in the preceding paragraph can be trimmed by Mr Geljic. We also note the agreement by Mr Geljic that, if required, trimming can be undertaken from Mr Geljic’s property providing 24 hours notice is given.

10 The Orders of the Court are:

1) The application is upheld, in part.
2) The respondent is to trim the existing hedge adjoining the common boundary on 39 Park Road Bowral for the length of the common boundary with 41 Park Road Bowral to a distance of 50 – 100 mm at ground level from the boundary and for a height of 1 m. The remaining area of shrubs are to be trimmed to a distance of 100 – 200 mm from the boundary.
3) The respondent is to maintain the area of hedge directly adjoining the dwelling at 41 Park Road Bowral to a height of 2 m to avoid possible damage to the guttering in this location.
4) The work required by Orders 2 and 3 is to be carried out within 28 days from the date of this Order.

___________
G T Brown
Commissioner of the Court

___________
Peter Thyer
Acting Commissioner of the Court