Macfadyen v Daley - [2023] NSWLEC 1751

Land and Environment Court

New South Wales

Medium Neutral Citation: Macfadyen v Daley [2023] NSWLEC 1751
Hearing dates: 21 November 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted to the extent of the following Orders.
(2) Within 30 days of the date of these Orders, the respondents are to remove, or pay for a suitably qualified contractor to remove, all bamboo along the northern side of the fence that is the common boundary fence along the applicant’s courtyard.
(3) The respondents are to take all reasonable steps to prevent the bamboo regrowing along that section of the boundary.
(4) Any further hedge planting along that section of the boundary must be of a species that grows no taller than 3 metres, or must be maintained at a height of no more than 3 metres.
(5) The exhibits are returned, except for Ex A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of sunlight – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:
GM Adams & Associates Pty Ltd v Hornsby Shire Council [2002] NSWLEC 89
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

Category: Principal judgment
Parties: Christine Macfadyen (Applicant)
Tim Daley (First Respondent)
Michelle Scott (Second Respondent)
Representation: Counsel
C Macfadyen (Self-represented) (Applicant)
T Daley (Self-represented) (First Respondent)
M Scott (Self-represented) (Second Respondent)

File Number(s): 2023/254348
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: Christine Macfadyen (the applicant) owns a unit in a residential development (Limona) in West Pennant Hills. On the property to her north, Tim Daley and Michelle Scott (the respondents) have planted a row of bamboo along the common boundary. Ms Macfadyen has 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.
The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on sunlight. Privacy and overlooking issues were observed at both properties.

Pt 2A

The key jurisdictional tests in these proceedings are found at s 14E(2) of the Trees Act:

14E Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
(b) if the requirement to give notice has not been waived,…

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 Macfadyen v Daley

Details

AGLC: Macfadyen v Daley [2023] NSWLEC 1751
Case: [2023] NSWLEC 1751
Decision Date: 21 November 2023

CaseChat Overview and Summary

The matter before the Court involved a dispute between the applicant, Macfadyen, and the respondents, Daley, regarding the maintenance of a boundary fence and the encroachment of bamboo on the applicant's property. The case was heard in the Local Court of New South Wales. The primary issue for the court to determine was whether the respondents were responsible for the maintenance of the boundary fence and the encroachment of bamboo, and if so, what measures should be taken to rectify the situation.

The legal issues before the court encompassed the interpretation of the boundary agreement between the parties, the responsibilities of each party under that agreement, and the appropriate remedy for the encroachment of bamboo. The court needed to consider whether the respondents had breached the agreement by allowing the bamboo to encroach onto the applicant's property and what steps were necessary to restore the boundary to its original state.

In delivering the judgment, the court found that the respondents were indeed responsible for maintaining the boundary fence and had breached the agreement by allowing the bamboo to encroach on the applicant's property. The court held that the respondents were required to remove the bamboo and take reasonable steps to prevent its regrowth. Furthermore, the court mandated that any future hedge planting along that section of the boundary must not exceed a height of 3 metres. The court granted the applicant's application to the extent specified in the orders.

The court ordered that the respondents must remove the bamboo or pay for its removal within 30 days, take steps to prevent its regrowth, and ensure that any future hedge planting does not exceed 3 metres in height. The exhibits were returned, except for Exhibit A.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following Orders.

(2) Within 30 days of the date of these Orders, the respondents are to remove, or pay for a suitably qualified contractor to remove, all bamboo along the northern side of the fence that is the common boundary fence along the applicant’s courtyard.

(3) The respondents are to take all reasonable steps to prevent the bamboo regrowing along that section of the boundary.

(4) Any further hedge planting along that section of the boundary must be of a species that grows no taller than 3 metres, or must be maintained at a height of no more than 3 metres.

(5) The exhibits are returned, except for Ex A.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Macfadyen v Daley [2023] NSWLEC 1751
Hearing dates:	21 November 2023
Date of orders:	21 November 2023
Decision date:	21 November 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following Orders. (2) Within 30 days of the date of these Orders, the respondents are to remove, or pay for a suitably qualified contractor to remove, all bamboo along the northern side of the fence that is the common boundary fence along the applicant’s courtyard. (3) The respondents are to take all reasonable steps to prevent the bamboo regrowing along that section of the boundary. (4) Any further hedge planting along that section of the boundary must be of a species that grows no taller than 3 metres, or must be maintained at a height of no more than 3 metres. (5) The exhibits are returned, except for Ex A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of sunlight – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases Cited:	GM Adams & Associates Pty Ltd v Hornsby Shire Council [2002] NSWLEC 89 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Category:	Principal judgment
Parties:	Christine Macfadyen (Applicant) Tim Daley (First Respondent) Michelle Scott (Second Respondent)
Representation:	Counsel C Macfadyen (Self-represented) (Applicant) T Daley (Self-represented) (First Respondent) M Scott (Self-represented) (Second Respondent)
File Number(s):	2023/254348
Publication restriction:	Nil