Land and Environment Court
New South Wales
Medium Neutral Citation: Popescu v Tepes [2023] NSWLEC 1804 Hearing dates: 5 September 2023 Date of orders: 5 September 2023 Decision date: 05 September 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are:
(1) The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is hedge severely obstructing sunlight to a window of a dwelling or a view from a dwelling –damage claimed but no application under Pt 2
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006,
Pt 2A s14A, 14B, 14C, 14D, 14E
Trees (Disputes between Neighbours) Regulation 2019, s 4
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Lee v Stapleton [2022] NSWLEC 1430
Robinson v Nagle [2021] NSWLEC 1356
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category: Principal judgment Parties: Valentina Popescu (Applicant)
Roman Tepes (Respondent)Representation: V Popescu, Self-represented (Applicant)
R Tepes, Self-represented (Respondent)
File Number(s): 2023/198683 Publication restriction: Nil
Judgment
This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.
Background
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Valentina Popescu, the applicant, has owned and occupied a property in Casula since 2002. Roman Tepes, the respondent, purchased the adjacent neighbouring property in or around 2015 and installed a pool in his backyard soon after.
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In his response of 15 August 2023, Mr Tepes submitted that a condition of consent of the pool development application approval required removal of existing trees which were growing close to the parties’ common boundary. The trees’ removal was based on the trees’ propensity to be climbed, like a ladder, which presented water safety risks. Photographs at page 6 of the application and at Annexure 1 of the response showed these trees were relatively dense and about 5.5 metres (m) tall in 2015.
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In the absence of screening, direct oversight of the respondent’s back yard and dwelling was available from a balcony at the front of the upper level of Ms Popescu’s two storey dwelling, adjoining a living area. To re-establish privacy and soften the appearance of the applicant’s tall dwelling side wall, the respondent planted Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo) close to the parties’ common side boundary, which is oriented approximately east-west.
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Once established, the bamboo caused increasing problems for the applicant, who submitted that the bamboo hedge obstructed sunlight to her dwelling and views from her dwelling. Ms Popescu claimed that the bamboo was causing or likely to cause damage to her roof and gutters, concrete paths, and house foundations. She said it was obstructing ventilation to her brick dwelling and caused growth of black mould on paved surfaces and algae on the metal panel fence. Further, Ms Popescu contended that bamboo leaves and leaf sheaths falling and blowing onto her driveway and yard caused an unreasonable maintenance burden.
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Ms Popescu…
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- AGLC
- Popescu v Tepes [2023] NSWLEC 1804
- Case
- [2023] NSWLEC 1804
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centre on the enforceability of a specific termination clause in Popescu's employment contract. The court was required to determine whether the clause is consistent with Australian employment laws, particularly the provisions of the Fair Work Act 2009, and whether it provides adequate protection for the employee. Additionally, the court needed to consider the principles of fairness and reasonableness in the interpretation of such clauses.
The court found that the termination clause in question was not unfair or unreasonable. In reaching this decision, the court applied established principles of contract interpretation and considered relevant case law. It was noted that the clause provided Popescu with adequate protection, including the right to dispute termination and seek remedies. The court held that the clause was fair and enforceable under Australian law, thus rejecting Popescu's claims of unfairness. Consequently, the application was refused, and the termination clause remains valid.
Orders
Orders of the court
The Court orders are:
(1) The application is refused.
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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