Martignoni v Ireland

[2024] NSWLEC 1762

Land and Environment Court

New South Wales

Medium Neutral Citation:

Martignoni v Ireland [2024] NSWLEC 1762

Hearing dates:

7 August 2024

Date of orders:

26 November 2024

Decision date:

26 November 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is granted, in part.

(2) In March 2025 and during March of each subsequent year, the respondent, at his expense, shall have the Weaver’s bamboo pruned to a maximum height of 3.5 m above ground level by a contractor with appropriate insurance.

(3) The applicant shall grant access to the respondent’s insured contractors to complete works or tidy the site, upon 72 hours’ notice by email.

(4) The works shall be undertaken in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5) All works shall be completed during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –high hedges – bamboo – alleged severe obstruction of sunlight – leaves falling onto roofs and into gutters – apprehension of damage and injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14C, 14D, 14E, 14F, Pts 2, 2A

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Steber v Job [2019] NSWLEC 1308

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Byron Development Control Plan 2014

Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Catherine Nij Martignoni (Applicant)
Benjamin Murray Ireland (Respondent)

Representation:

M Martignoni (Agent) (Applicant)
B Ireland (Self-represented) (Respondent)

File Number(s):

2024/182114

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Catherine Nij Martignoni (the applicant) and Benjamin Murray Ireland (the respondent), share a side boundary between their properties at South Golden Beach, that extends from around north at the front to near south at the rear. Mr Ireland has been in occupation since 2010 while Ms Martignoni purchased her property in 2017.

2. Clumps of two bamboo species, tall palms, and smaller trees were growing close to the common boundary on the respondent’s land. Ms Martignoni contended that bamboo culms (stems) were encroaching beyond the common boundary and towering over her dwelling. She claimed the bamboo severely obstructed sunlight to her dwelling and covered her roof, gutters, and paved surfaces with debris, and that bamboo stems were emerging on her land.

3. Mr Ireland preferred to retain the bamboo for the privacy it provided in his single storey dwelling from oversight from the applicant’s property, which was two-storey with a deck running down the eastern side of the upper level. Mr Ireland also appreciated the bamboo’s contribution to his ‘tropical’ garden.

4. Mr Ireland thus resisted pruning the height of the bamboo but offered to remove stems that arched over onto Ms Martignoni’s property. He claimed the applicant’s property was a holiday house which was rarely used and that the debris issue was caused by the applicant’s failure to adequately…