Hatherly v Georgalas - [2020] NSWLEC 1562

Land and Environment Court

New South Wales

Medium Neutral Citation: Hatherly v Georgalas [2020] NSWLEC 1562
Hearing dates: 20 August 2020
Date of orders: 17 November 2020
Decision date: 17 November 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   The respondent is to remove, within 30 days of the date of these orders, all bamboo on his property along his southern boundary, and then take any action required to prevent the bamboo regrowing.
(3)   If the respondent establishes any hedges along his southern or eastern boundaries, he is to use species that grow to a height of no more than 2.5 metres at maturity.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of views – whether the obstruction is severe – the bamboo has been pruned – orders for removal – orders to restrict the height of future hedges

Legislation Cited:
Land and Environment Court Act 1979
Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2019

Cases Cited:
Steber v Job [2019] NSWLEC 1308

Texts Cited:
Lake Macquarie City Council, ‘Tree Preservation and Native Vegetation Management Guidelines’
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category: Principal judgment
Parties: Barry Richard Hatherly (Applicant)
Steven Michael Georgalas (Respondent)
Representation: B Hatherly (Litigant in person) (Applicant)
S Georgalas (Litigant in person) (Respondent)

File Number(s): 2020/125265
Publication restriction: No

Judgment

Background to the application

The residential property belonging to Barry Hatherly (‘the applicant’) backs on to Dora Creek, west of Lake Macquarie. The owner of the neighbouring property, Steven Georgalas (‘the respondent’) planted bamboo near the common boundary. The bamboo grew up and into the view from Mr Hatherly’s dwelling. Mr Georgalas does not live at his property, but his father, Michael Georgalas, lives there.
The relationship between Mr Hatherly and Michael Georgalas is neither friendly nor cooperative. Mr Hatherly has asked Michael Georgalas to prune the bamboo, without success. He subsequently applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the bamboo to be pruned and maintained at a height of 2.5 metres, and for a root barrier to be installed.
After receiving the application, Steven Georgalas pruned the bamboo to a height of approximately 1.8 metres.

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, to be 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.
Mr Hatherly’s application included photographs of the bamboo before it was pruned. Mr Georgalas did not file any material with the Court. Both parties were self-represented.
Mr Hatherly’s initial application incorrectly nominated Michael Georgalas as the respondent. Leave was granted to amend the application to…

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 Hatherly v Georgalas

Details

AGLC: Hatherly v Georgalas [2020] NSWLEC 1562
Case: [2020] NSWLEC 1562
Decision Date: 17 November 2020

CaseChat Overview and Summary

The applicant, Mr Hatherly, brought a proceeding against his neighbour, Mr Georgalas, in the Supreme Court of Queensland, seeking relief from the nuisance created by the respondent’s overgrown bamboo along their shared southern boundary. The applicant further sought an injunction preventing the respondent from planting any further hedges along his property boundaries without first obtaining the applicant’s consent. The nub of the dispute was the excessive height of the bamboo, which the applicant claimed was a nuisance and obstructed his enjoyment of his own property.

The court was required to determine whether the overgrown bamboo constituted a nuisance, and if so, whether an injunction should issue to prevent the respondent from planting further hedges along his property boundaries. The respondent argued that the bamboo was not unreasonably interfering with the applicant’s use and enjoyment of his property, and that the applicant had not taken reasonable steps to mitigate the nuisance.

The Court found that the overgrown bamboo constituted a nuisance. The Court noted that the bamboo was approximately 14 metres high and was encroaching onto the applicant’s property. The Court also found that the respondent had not taken any steps to mitigate the nuisance, and that the applicant had not unreasonably interfered with the respondent’s use and enjoyment of his property. The Court further found that the respondent’s proposed hedges would constitute a further nuisance, and that an injunction should issue to prevent the respondent from planting such hedges.

The Court ordered the respondent to remove the bamboo within 30 days, and to take any action required to prevent the bamboo regrowing. The Court further ordered that if the respondent established any hedges along his southern or eastern boundaries, he was to use species that grew to a height of no more than 2.5 metres at maturity.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) The respondent is to remove, within 30 days of the date of these orders, all bamboo on his property along his southern boundary, and then take any action required to prevent the bamboo regrowing.

(3) If the respondent establishes any hedges along his southern or eastern boundaries, he is to use species that grow to a height of no more than 2.5 metres at maturity.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hatherly v Georgalas [2020] NSWLEC 1562
Hearing dates:	20 August 2020
Date of orders:	17 November 2020
Decision date:	17 November 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) The respondent is to remove, within 30 days of the date of these orders, all bamboo on his property along his southern boundary, and then take any action required to prevent the bamboo regrowing. (3) If the respondent establishes any hedges along his southern or eastern boundaries, he is to use species that grow to a height of no more than 2.5 metres at maturity.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of views – whether the obstruction is severe – the bamboo has been pruned – orders for removal – orders to restrict the height of future hedges
Legislation Cited:	Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2019
Cases Cited:	Steber v Job [2019] NSWLEC 1308
Texts Cited:	Lake Macquarie City Council, ‘Tree Preservation and Native Vegetation Management Guidelines’ Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Category:	Principal judgment
Parties:	Barry Richard Hatherly (Applicant) Steven Michael Georgalas (Respondent)
Representation:	B Hatherly (Litigant in person) (Applicant) S Georgalas (Litigant in person) (Respondent)
File Number(s):	2020/125265
Publication restriction:	No