Land and Environment Court
New South Wales
Medium Neutral Citation: Myjavec v Weatherall [2018] NSWLEC 1457 Hearing dates: 22 August 2018 Date of orders: 22 August 2018 Decision date: 22 August 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 28 days of the date of these orders, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants’ property.
(2) The respondent is to give the applicants at least two days’ notice of the works in order (1).
(3) The applicants are to allow any access required for the works in (1) during reasonable hours of the day.
(4) Beginning September 2019, and then annually during September, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants’ property.
(5) Each year the respondent is to give the applicants at least two days’ notice of the works in (4).
(6) Each year the applicants are to allow any access required for the works in (4) during reasonable hours of the day.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – bamboo – screening – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Paul Myjavec (First Applicant)
Kathleen Patricia Myjavec (Second Applicant)
Anne Maree Weatherall (Respondent)Representation: P and K P Myjavec, litigants in person (Applicants)
A M Weatherall, litigant in person (Respondent)
File Number(s): 2018/145529 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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A clump of bamboo on Anne Maree Weatherall’s (the respondent’s) Coledale property provides screening between the rear of her dwelling and the neighbouring dwelling owned by the Myjavecs (the applicants). A rapidly growing species, the bamboo has reached a height of 7–8 m and overhangs the common boundary. Shorter culms of bamboo brush against the Myjavecs’ dwelling. Taller culms hit their gutters when blowing in the wind. No damage has yet occurred but the Myjavecs are concerned it soon will. They have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders that the bamboo removed.
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Ms Weatherall is willing to prune the bamboo but does not want it removed, as it provides visual screening between the two dwellings.
Findings
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The hearing took place onsite, allowing observations of the bamboo and dwellings. I bring my own arboricultural expertise and experience to this matter.
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I find it likely that the shorter culms growing against or close to the Myjavecs’ dwelling will scrape and damage, at least visually, their wall surface, as they move in the wind. I also find that taller culms, which are thick and hard, will damage their roof guttering when moving in the wind. Mr Myjavec showed video footage on his phone of these culms being blown and reaching their roof guttering. This satisfies the jurisdictional test at s 10(2) of the Trees Act. Bamboo is a tree for the purposes of the Trees Act. I can therefore make orders to prevent bamboo causing damage to the Myjavecs’ dwelling.
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The privacy and screening benefits provided to Ms Weatherall by the bamboo could be maintained with pruning. Although the Myjavecs want the bamboo removed so that it doesn’t regrow and cause damage in future, future damage could be prevented through regular pruning. Therefore, I will make orders for Ms Weatherall to prune the bamboo annually. Some access may be required through the Myjavecs’ property.
Orders
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As a result of the foregoing, the orders of the Court are:
Within 28 days of the date of these orders, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants’ property.
The respondent is to give the applicants at least two days’ notice of the works in order (1).
The applicants are to allow any access required for the works in (1) during reasonable hours of the day.
Beginning September 2019, and then annually during September, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants’ property.
Each year the respondent is to give the applicants at least two days’ notice of the works in (4).
Each year the applicants are to allow any access required for the works in (4) during reasonable hours of the day.
____________________________
D Galwey
Acting Commissioner of the Court
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- AGLC
- Myjavec v Weatherall [2018] NSWLEC 1457
- Case
- [2018] NSWLEC 1457
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicants were entitled to the orders sought, and if so, what terms should be attached to the orders. The court considered the relevant principles of law and found that the applicants had established a nuisance, as the bamboo was causing a substantial interference with their enjoyment and use of their property. The court also found that the respondent had failed to take reasonable steps to prevent the bamboo from overhanging the applicants’ property. The court determined that the orders sought by the applicants were appropriate and necessary to remedy the nuisance and prevent it from continuing in the future.
The court made orders for the respondent to prune the bamboo to a specified height and remove any overhanging parts within 28 days of the date of the orders, and for the respondent to give the applicants notice of the works and for the applicants to allow access for the works. The court also made orders for ongoing maintenance of the bamboo to prevent it from overhanging the applicants’ property in the future. The respondent was required to give the applicants notice of the annual works and the applicants were required to allow access for the works during reasonable hours of the day. The court made the orders on the basis that they were necessary to remedy the nuisance and prevent it from continuing in the future.
Orders
Orders of the court
(1) Within 28 days of the date of these orders, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants’ property.
(2) The respondent is to give the applicants at least two days’ notice of the works in order (1).
(3) The applicants are to allow any access required for the works in (1) during reasonable hours of the day.
(4) Beginning September 2019, and then annually during September, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants’ property.
(5) Each year the respondent is to give the applicants at least two days’ notice of the works in (4).
(6) Each year the applicants are to allow any access required for the works in (4) during reasonable hours of the day.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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