Reilly v Costello
[2019] NSWLEC 1534
•31 October 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Reilly v Costello [2019] NSWLEC 1534 Hearing dates: 31 October 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – bamboo – obstruction of sunlight – the bamboo is not planted so as to form a hedge – other tree in the application is a single tree – Part 2A only applies to groups of two or more trees Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Johnson v Angus (2012) 190 LGERA 334 Category: Principal judgment Parties: Kathleen Reilly (Applicant)
Roxanne Costello (Respondent)Representation: K Reilly (Litigant in person) (Applicant)
R Costello (Litigant in person) (Respondent)
File Number(s): 2019/227056 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The application
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Kathleen Reilly (‘the applicant’) has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for trees on neighbouring land owned by Roxanne Costello (‘the respondent’) to be removed or pruned. Ms Reilly says bamboo and a cape honeysuckle obstruct sunlight to glass doors of her dwelling. She wants the bamboo removed and the honeysuckle pruned.
Framework of this decision
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Before I can make orders, I must be satisfied of each of the elements of Ms Reilly’s application – that the trees are planted in groups of two or more so as to form hedges (s 14A(1)(a) of the Trees Act); that they rise to at least 2.5 metres (s 14A(1)(b)); and that they severely obstruct sunlight to windows of Ms Reilly’s dwelling (s 14E(2)(a)(i)). I must also be satisfied at s 14E(1) that she has made reasonable effort to reach agreement.
The bamboo
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Bamboo grows on Ms Costello’s land between her dwelling and her pool. The bamboo extends north from the common boundary for several metres. Most of it was pruned about three weeks ago, and is now approximately five metres tall. Unpruned parts are about nine metres tall.
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This bamboo spreads by rhizomes. Ms Reilly submitted that the bamboo was not present when she purchased her property some 20 years ago, nor when she had the two north-facing double glass doors installed several years ago. However, Ms Costello submitted that bamboo was growing vigorously in her garden when she purchased her property 25 years ago, and she spent considerable effort trying to remove or control it. I accept her statement, as it does not contradict Ms Reilly’s. It is possible that most of the bamboo was removed and its remaining parts were not visible from Ms Reilly’s property for some time. The bamboo now to Ms Reilly’s north has likely regrown from whatever was left behind.
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On the basis of the above, there is no evidence that the bamboo was planted so as to form a hedge. Preston CJ in Johnson v Angus (2012) 190 LGERA 334 clarified at [27]-[29] that the wording of s 14A(1)(a) requires not only that the trees form a hedge in the present, but also that they were originally planted for that purpose. It is at least possible that the bamboo in Ms Costello’s garden began as a single plant. I cannot be satisfied that the bamboo was planted so as to form a hedge, so I cannot make orders for the bamboo.
The Cape Honeysuckle
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There appears to be only one cape honeysuckle plant, though it has several stems. At s 14A(1), Part 2A of the Trees Act “…applies only to groups of 2 or more trees…”. It follows that I cannot make orders for this element of the application.
Other matters
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Both Ms Reilly and Ms Costello made other submissions regarding privacy, the need for sunlight, and the history of their dispute. However, based on my findings above, I do not need to consider those here.
Orders
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As a result of the foregoing, the Court orders:
The application is refused.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 04 November 2019
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