Glossop v Johnson - [2020] NSWLEC 1685

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Glossop v Johnson [2020] NSWLEC 1685
Hearing dates: 18 September 2020
Date of orders: 30 December 2020
Decision date: 30 December 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   Within 60 days of the date of these orders, the respondents are to remove all bamboo along their southern side boundary.
(3)   The respondents are to take all reasonable action required to prevent the bamboo regrowing.
(4)   If the respondents establish any hedges along their southern boundary in future, they are to use species that grow to a height of no more than 3 metres at maturity.
(5) The exhibits are returned except for A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction sunlight – whether the obstruction is severe – orders for removing the hedge

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2019

Cases Cited:
Steber v Job [2019] NSWLEC 1308

Texts Cited:
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category: Principal judgment
Parties: Graeme Glossop (First Applicant)
Michele Glossop (First Applicant)
Kevin Johnson (First Respondent)
Jeanette Maree Johnson (Second Respondent)
Representation:
Counsel:
G Glossop (Litigant in Person) (First Applicant)
M Glossop (Litigant in Person) (Second Applicant)
J Vaughan (Solicitor) (Respondents)
Solicitors:
J A Vaughan (Respondents)

File Number(s): 2020/139780
Publication restriction: No

Judgment

Background to the application

During the time that Graeme and Michele Glossop (‘the applicants’) have owned their Forster property, Kevin and Jeanette Maree Johnson (‘the respondents’) have constructed a dwelling on the neighbouring property to the Glossops’ north. The Johnsons have owned the land for some 25 years, and built on it five years ago. They planted bamboo along the common boundary to provide screening. The bamboo grew quickly to be taller than the roof gutters of these double-storey dwellings.
The Glossops found the bamboo obstructed their sunlight. They asked the Johnsons to prune the bamboo, to no avail. They applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the bamboo to be removed, or in the alternative, for it to be pruned and a root barrier installed. Prior to the hearing, the Johnsons pruned the bamboo, so that it is now at the height of the Glossops’ roof guttering.

The hearing

Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection. The parties provided numerous photographs illustrating the situation.

Framework for this decision

For the Court to make orders under Part 2A of the Trees Act, several jurisdictional tests must be met:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glossop v Johnson

Details

AGLC: Glossop v Johnson [2020] NSWLEC 1685
Case: [2020] NSWLEC 1685
Decision Date: 30 December 2020

CaseChat Overview and Summary

The applicants, Glossop, sought relief from the Supreme Court of New South Wales against the respondents, Johnson, in a dispute concerning the encroachment of bamboo plants on their shared boundary. The Glossops alleged that the bamboo, which grew to a height of over 10 metres, obstructed their view, reduced sunlight, and negatively impacted the aesthetic value of their property. The Johnsons argued that the bamboo was not intentionally planted and that removing it would cause unnecessary damage to their property.

The central legal issues the court needed to address were whether the bamboo constituted a nuisance and if so, what remedies were available. The court had to determine whether the bamboo's growth constituted an unreasonable interference with the Glossops' use and enjoyment of their land and if the Glossops had a legal right to prevent such interference. Additionally, the court needed to consider the appropriate measures to resolve the dispute, including potential orders for the removal of the bamboo and measures to prevent its regrowth.

The court found that the bamboo did constitute a nuisance as it significantly impacted the Glossops' enjoyment of their property. The court emphasised the importance of maintaining neighbourly relations and the duty of property owners to prevent their land from causing harm to neighbouring properties. The Glossops were granted an injunction ordering the Johnsons to remove the bamboo from their southern boundary within 60 days and to take reasonable measures to prevent its regrowth. Furthermore, the Johnsons were directed to use hedge species with a maximum height of 3 metres if they wished to establish hedges along their southern boundary in the future. The exhibits were returned to the parties, except for one which was retained by the court.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Within 60 days of the date of these orders, the respondents are to remove all bamboo along their southern side boundary.

(3) The respondents are to take all reasonable action required to prevent the bamboo regrowing.

(4) If the respondents establish any hedges along their southern boundary in future, they are to use species that grow to a height of no more than 3 metres at maturity.

(5) The exhibits are returned except for A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Glossop v Johnson [2020] NSWLEC 1685
Hearing dates:	18 September 2020
Date of orders:	30 December 2020
Decision date:	30 December 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) Within 60 days of the date of these orders, the respondents are to remove all bamboo along their southern side boundary. (3) The respondents are to take all reasonable action required to prevent the bamboo regrowing. (4) If the respondents establish any hedges along their southern boundary in future, they are to use species that grow to a height of no more than 3 metres at maturity. (5) The exhibits are returned except for A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction sunlight – whether the obstruction is severe – orders for removing the hedge
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2019
Cases Cited:	Steber v Job [2019] NSWLEC 1308
Texts Cited:	Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Category:	Principal judgment
Parties:	Graeme Glossop (First Applicant) Michele Glossop (First Applicant) Kevin Johnson (First Respondent) Jeanette Maree Johnson (Second Respondent)
Representation:	Counsel: G Glossop (Litigant in Person) (First Applicant) M Glossop (Litigant in Person) (Second Applicant) J Vaughan (Solicitor) (Respondents) Solicitors: J A Vaughan (Respondents)
File Number(s):	2020/139780
Publication restriction:	No