Popescu v Tepes

[2023] NSWLEC 1804

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

Tooth v McCombie [2011] NSWLEC 1004

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

1. 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.

2. 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.

3. 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.

4. 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.

5. Ms Popescu…