Joseph v Spencer (No 7)

[2022] NSWLEC 1085

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Joseph v Spencer (No 7) [2022] NSWLEC 1085

Hearing dates:

7-9 February 2022

Date of orders:

17 February 2022

Decision date:

17 February 2022

Jurisdiction:

Class 2

Before:

Dixon SC

Decision:

See orders at [50] below.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 – bamboo – obstruction of view – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14D, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

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

Wein v Reeves [2022] NSWLEC 1019

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Michael Joseph (Applicant)
Ricardo Douglas Spencer (First Respondent)
Jennifer Gwenneth Spencer (Second Respondent)

Representation:

M Joseph (Self-represented) (Applicant)
J Spencer (Self-represented) (Respondents)

File Number(s):

2021/14119

Publication restriction:

Nil

Judgment

1. The applicant, Michael Joseph has made an application pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), for orders in relation to bamboo planted on his neighbours’ southern boundary, immediately to north of his dwelling, at 108 North Kiama Drive, Kiama Downs.

2. The neighbouring property, at 110 North Kiama Drive, Kiama Downs, is owned by the respondents, Drs Ricardo and Jennifer Spencer (the Spencers).

Background

3. The background facts are relevantly uncontentious. The following narrative provides context to the position adopted and the detailed submissions made by each of the parties.

4. The properties are located on the eastern side of North Kiama Drive. They adjoin at the rear an ocean front reserve with extensive coastal and ocean views to the north, east and south. Views which are bookended by the Minnamurra Headland and Bass Point to the north and the Cathedral Rocks and its headland (Bombo Headland) to the south.

5. The bamboo was planted by the Spencers on 21 April 2020. Six holes were dug along the Spencers’ southern boundary and 4 trees (culms) were planted to form a hedge. A photograph taken from the downstairs playroom of the applicant’s dwelling showing the workers digging the holes for the planting of the bamboo in 2020 is in evidence (Exhibit 4). This photograph also shows a view from the dwelling which includes the Minnamurra Headland and water interface with the applicant’s existing tree forward of that view. Additional photographs taken by Council officers in 2018 when attending Mr Joseph’s property for the purposes of assessing the amenity impacts of the Spencers’ earlier DA show the same view to the Headland.

6. The applicant claims that the bamboo hedge now severely obstructs a view from the playroom of his dwelling to the Minnamurra Headland and its water interface. The obstructed view is shown in the photographs taken from that location in 2020 and 2021 (marked Exhibit H).

7. The…