Rimmington v Brinkworth - [2022] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation: Rimmington v Brinkworth [2022] NSWLEC 1076
Hearing dates: 22 October 2021
Date of orders: 14 February 2022
Decision date: 14 February 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is granted to the extent of the orders below.
(2) Until the bamboo hedge along the respondents’ common boundary with the applicant’s property is removed, during March and September each year, beginning March 2022, the respondents are to prune, or are to engage a suitably insured landscape contractor or arborist to prune, the bamboo hedge along the respondents’ common boundary with the applicant’s’ property so that: the bamboo is no more than 2 metres above the top of the boundary fence; and all bamboo overhanging the applicant’s boundary is pruned back to the boundary line. The respondents are to remove any debris from the pruning in order (2) from the applicant’s property.
(3) The respondents are to give the applicant at least 2 days’ notice of each pruning event in order (2).
(4) The applicant is to allow access for each pruning event in order (2) during reasonable hours of the day.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight and views – bamboo – whether the obstruction is severe – privacy – balancing of applicant’s access to sunlight and views with respondents’ privacy – pruning ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:
Davies v Penrith City Council [2013] NSWLEC 1141
Steber v Job [2019] NSWLEC 1308
Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:
Lake Macquarie Development Control Plan 2014

Category: Principal judgment
Parties: Carolyn Rimmington (Applicant)
Craig Brinkworth (First Respondent)
Alyta Brinkworth (Second Respondent)
Representation: Counsel:
C Rimmington (Litigant in Person) (Applicant)
C Brinkworth (Litigant in Person) (First Respondent)
A Brinkworth (Litigant in Person) (Second Respondent)

File Number(s): 2021/180335
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: Carolyn Rimmington (‘the applicant’) and Alyta and Craig Brinkworth (‘the respondents’) are neighbours in Caves Beach, in the Lake Macquarie area south of Newcastle. Dwellings in their estate are cheek by jowl, as they are in many similar residential developments of the recent era, with limited private open space. The Brinkworths’ property is to the north of Ms Rimmington’s property, the common boundary they share being the rear boundary of each property. The back of Ms Rimmington’s two-storey dwelling, separated from this common boundary by her open space only a few metres wide, faces the back of the Brinkworths’ dwelling and overlooks, from the upper level, their back garden with their pool. For privacy, the Brinkworths grew a bamboo hedge along their side of this boundary. Ms Rimmington complained to the Brinkworths that the hedge, once it grew tall enough, obstructed sunlight to the back of her dwelling and views from her dwelling. Although the Brinkworths undertook some…

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 Rimmington v Brinkworth

Details

AGLC: Rimmington v Brinkworth [2022] NSWLEC 1076
Case: [2022] NSWLEC 1076
Decision Date: 14 February 2022

CaseChat Overview and Summary

In Rimmington v Brinkworth, the parties were neighbours with a shared boundary line. The applicants sought an injunction to compel the respondents to prune a bamboo hedge along the common boundary. The matter was heard in the Supreme Court of South Australia. The applicants complained that the hedge was encroaching on their property, causing harm and distress. The dispute required the court to decide whether an injunction could be granted to compel the respondents to prune the hedge.

The court considered whether an injunction was appropriate given the nature of the dispute and the relative hardship of each party. The applicants argued that the hedge was causing harm to their property and that an injunction was necessary to prevent further damage. The respondents argued that pruning the hedge would be an unreasonable interference with their property and that they should not be compelled to do so. The court held that an injunction was appropriate in these circumstances, given the harm being caused to the applicants and the relatively minor burden on the respondents to prune the hedge.

Accordingly, the court made orders compelling the respondents to prune the bamboo hedge along the common boundary, with specific instructions as to the height of the hedge and the removal of any overhanging bamboo. The court also ordered the respondents to give the applicants notice of each pruning event and for the applicants to allow access for the pruning during reasonable hours. The court concluded that these orders were necessary to prevent harm to the applicants’ property and that the burden on the respondents was not unreasonable.

Orders

Orders of the court

The Court orders that:

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

(2) Until the bamboo hedge along the respondents’ common boundary with the applicant’s property is removed, during March and September each year, beginning March 2022, the respondents are to prune, or are to engage a suitably insured landscape contractor or arborist to prune, the bamboo hedge along the respondents’ common boundary with the applicant’s’ property so that: the bamboo is no more than 2 metres above the top of the boundary fence; and all bamboo overhanging the applicant’s boundary is pruned back to the boundary line. The respondents are to remove any debris from the pruning in order (2) from the applicant’s property.

(3) The respondents are to give the applicant at least 2 days’ notice of each pruning event in order (2).

(4) The applicant is to allow access for each pruning event in order (2) 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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Medium Neutral Citation:	Rimmington v Brinkworth [2022] NSWLEC 1076
Hearing dates:	22 October 2021
Date of orders:	14 February 2022
Decision date:	14 February 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted to the extent of the orders below. (2) Until the bamboo hedge along the respondents’ common boundary with the applicant’s property is removed, during March and September each year, beginning March 2022, the respondents are to prune, or are to engage a suitably insured landscape contractor or arborist to prune, the bamboo hedge along the respondents’ common boundary with the applicant’s’ property so that: the bamboo is no more than 2 metres above the top of the boundary fence; and all bamboo overhanging the applicant’s boundary is pruned back to the boundary line. The respondents are to remove any debris from the pruning in order (2) from the applicant’s property. (3) The respondents are to give the applicant at least 2 days’ notice of each pruning event in order (2). (4) The applicant is to allow access for each pruning event in order (2) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight and views – bamboo – whether the obstruction is severe – privacy – balancing of applicant’s access to sunlight and views with respondents’ privacy – pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14D, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, cl 4
Cases Cited:	Davies v Penrith City Council [2013] NSWLEC 1141 Steber v Job [2019] NSWLEC 1308 Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462
Texts Cited:	Lake Macquarie Development Control Plan 2014
Category:	Principal judgment
Parties:	Carolyn Rimmington (Applicant) Craig Brinkworth (First Respondent) Alyta Brinkworth (Second Respondent)
Representation:	Counsel: C Rimmington (Litigant in Person) (Applicant) C Brinkworth (Litigant in Person) (First Respondent) A Brinkworth (Litigant in Person) (Second Respondent)
File Number(s):	2021/180335
Publication restriction:	No