Howe v Jinks

[2012] NSWLEC 1142

Land and Environment Court

New South Wales

Medium Neutral Citation:

Howe & Anor v Jinks & Anor [2012] NSWLEC 1142

Hearing dates:

10 May 2012

Decision date:

10 May 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)The application to remove the bamboo under Part 2 of the Act is dismissed.

(2)The application to remove the bamboo under Part 2A of the Act is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; obstruction of light; obstruction of views; bamboo; application dismissed.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Freeman v Dillon [2012] NSWLEC 1057
Hinde v Anderson & anor [2009] NSWLEC 1148
Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Marilyn Howe and Walter Howe (Applicants)

Matthew Jinks and Shiona Frame (Respondents)

Representation:

Marilyn Howe and Walter Howe (Applicants in person)

Matthew Jinks (Respondent in person)

File Number(s):

20061 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. ACTING COMMISSIONER: Mr and Mrs Howe are concerned about the consequences of a neighbouring planting of bamboo near the common boundary. In particular, they are concerned that as the bamboo grows it will damage the boundary fence and pipes on their property, and that it will obstruct both sunlight to, and views from, their dwelling. They make this application under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. Mr Jinks has only recently planted the bamboo on his property and does not wish to remove it.

1. I must determine if the bamboo is likely to cause damage to the applicants' property and, if so, what orders as described by s 9 of the Act would be appropriate. I must also determine if the bamboo is causing a severe obstruction of sunlight or views.

Part 2 - Damage

1. The hearing took place on site. Mrs Howe pointed out the bamboo of concern, which is on the lower section, or front half, of Mr Jinks' property. Bamboo planted by Mr Jinks in the elevated part of his property further from the street frontage, to the rear of the dwellings, is not the subject of Mrs and Mr Howe's application.

1. The bamboo was planted in January of this year in a row approximately 20 to 30 cm inside Mr Jinks' property and parallel with the common boundary. It is a clumping variety of bamboo. There is no root barrier along the boundary.

1. Mrs Howe contends that the upper part of the bamboo is likely to damage the fence in the near future as the bamboo grows and its canes hit against the metal fence along the boundary. She also contends that the parts below ground will spread and push against the strip of wood along the bottom of the fence, displacing the fence, and also possibly causing damage to pipes and a path on her property. She further submits that the bamboo is close to Mr Jinks' external instantaneous gas heater and…