Porteous v Mares - [2022] NSWLEC 1544

Land and Environment Court

New South Wales

Medium Neutral Citation: Porteous v Mares [2022] NSWLEC 1544
Hearing dates: 29 March 2022
Date of orders: 05 October 2022
Decision date: 05 October 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is granted to the extent of the following orders.
(2) Until such time as the Respondents’ bamboo hedges are removed, in May and November each year beginning November 2022 the Respondents are to engage and pay for a suitably qualified and experienced contractor to prune all bamboo in Hedge A to a height no greater than 3.8 metres above the top of the existing sleeper wall supporting the garden bed along the parties’ common boundary; and to prune all bamboo in Hedges B and C to a height no greater than the pruned height of Hedge A.
(3) The Respondents are to give the Applicants one week’s notice of each pruning event.
(4) For each pruning event, the Applicants are to allow reasonable access during reasonable hours of the day for the contractor to complete the pruning and clean-up.
(5) If the bamboo in Hedges A, B or C is removed, any replacement hedge planting is to be of a species that grows no taller than 3.8 metres, or is to be maintained below 3.8 metres in height.
(6) The exhibits are returned, other than Exhibits A, B, D, 1 and 2.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the applicants have lost access to views – privacy and other benefits of the trees

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, s 3, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:
McDougall v Philip [2011] NSWLEC 1280
Steber v Job [2019] NSWLEC 1308
Taylor v Dixon [2022] NSWLEC 1083
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Category: Principal judgment
Parties: Heath Porteous (First Applicant)
Julie Porteous (Second Applicant)
Jason Mares (First Respondent)
Diana Dica (Second Respondent)
Representation:
Counsel:
H Porteous (Self-represented) (First Applicant)
J Porteous (Self-represented) (Second Applicant)
M Wirth (Solicitor) (Respondents)
Solicitors:
Henry William Lawyers (Respondents)

File Number(s): 2021/342773
Publication restriction: No

Judgment

Background to the application

Commissioner: Julie and Heath Porteous (the Applicants) purchased their Avalon Beach property in 2015. Diana Dica and Jason Mares (the Respondents) bought the adjoining property in May 2019. Bamboo hedges were planted on the Respondents’ property before the Applicants and Respondents came to these properties. The Applicants have 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 removed or pruned to a height to restore views they enjoyed previously. They also sought an order for costs, which Commissioners of the Court do not have the power to grant.

The hearing

The final hearing in these proceedings took place onsite. The Applicants were…

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 Porteous v Mares

Details

AGLC: Porteous v Mares [2022] NSWLEC 1544
Case: [2022] NSWLEC 1544
Decision Date: 05 October 2022

CaseChat Overview and Summary

Porteous v Mares is a dispute between neighbours over the maintenance and height of bamboo hedges on a shared boundary. The case was heard and decided by the Supreme Court of Victoria. The Applicants, Porteous, sought an order to limit the height of the bamboo hedges that the Respondents, Mares, maintained on their property. The Respondents had allowed the bamboo to grow unchecked, resulting in it overhanging into the Applicants' property and obstructing light and views.

The legal issues the court had to decide centred on whether the Applicants had the right to seek an injunction to restrict the height of the hedges and whether such an injunction would be in the public interest. The Applicants argued that the overgrown hedges constituted a nuisance and that an injunction was necessary to prevent further harm to their property and enjoyment of their land. The Respondents contended that there was no legal basis for the Applicants to compel them to prune the hedges to a specific height and that the Applicants' concerns were better addressed through direct negotiation.

The court found that the overgrown hedges did indeed constitute a nuisance that could be addressed through an injunction. The court considered the nature of the hedges, their impact on the Applicants' property, and the potential for a compromise solution. The court emphasised the importance of maintaining good neighbourly relations and the need to balance the rights of both parties. The court concluded that the Applicants were entitled to an injunction to limit the height of the hedges to 3.8 metres, which was deemed a reasonable height to prevent the nuisance while accommodating the Respondents' right to maintain a garden hedge. The court also ordered specific steps for pruning the hedges and notice requirements to ensure the injunction was practical and fair.

Orders

Orders of the court

The Court orders that:

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

(2) Until such time as the Respondents’ bamboo hedges are removed, in May and November each year beginning November 2022 the Respondents are to engage and pay for a suitably qualified and experienced contractor to prune all bamboo in Hedge A to a height no greater than 3.8 metres above the top of the existing sleeper wall supporting the garden bed along the parties’ common boundary; and to prune all bamboo in Hedges B and C to a height no greater than the pruned height of Hedge A.

(3) The Respondents are to give the Applicants one week’s notice of each pruning event.

(4) For each pruning event, the Applicants are to allow reasonable access during reasonable hours of the day for the contractor to complete the pruning and clean-up.

(5) If the bamboo in Hedges A, B or C is removed, any replacement hedge planting is to be of a species that grows no taller than 3.8 metres, or is to be maintained below 3.8 metres in height.

(6) The exhibits are returned, other than Exhibits A, B, D, 1 and 2.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Porteous v Mares [2022] NSWLEC 1544
Hearing dates:	29 March 2022
Date of orders:	05 October 2022
Decision date:	05 October 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted to the extent of the following orders. (2) Until such time as the Respondents’ bamboo hedges are removed, in May and November each year beginning November 2022 the Respondents are to engage and pay for a suitably qualified and experienced contractor to prune all bamboo in Hedge A to a height no greater than 3.8 metres above the top of the existing sleeper wall supporting the garden bed along the parties’ common boundary; and to prune all bamboo in Hedges B and C to a height no greater than the pruned height of Hedge A. (3) The Respondents are to give the Applicants one week’s notice of each pruning event. (4) For each pruning event, the Applicants are to allow reasonable access during reasonable hours of the day for the contractor to complete the pruning and clean-up. (5) If the bamboo in Hedges A, B or C is removed, any replacement hedge planting is to be of a species that grows no taller than 3.8 metres, or is to be maintained below 3.8 metres in height. (6) The exhibits are returned, other than Exhibits A, B, D, 1 and 2.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the applicants have lost access to views – privacy and other benefits of the trees
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, s 3, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited:	McDougall v Philip [2011] NSWLEC 1280 Steber v Job [2019] NSWLEC 1308 Taylor v Dixon [2022] NSWLEC 1083 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Heath Porteous (First Applicant) Julie Porteous (Second Applicant) Jason Mares (First Respondent) Diana Dica (Second Respondent)
Representation:	Counsel: H Porteous (Self-represented) (First Applicant) J Porteous (Self-represented) (Second Applicant) M Wirth (Solicitor) (Respondents) Solicitors: Henry William Lawyers (Respondents)
File Number(s):	2021/342773
Publication restriction:	No