Robinson v Nagle - [2021] NSWLEC 1356

Land and Environment Court

New South Wales

Medium Neutral Citation: Robinson v Nagel [2021] NSWLEC 1356
Hearing dates: 12 April 2021
Date of orders: 18 June 2021
Decision date: 18 June 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted.
(2) Within 30 days of the date of these orders the respondents are to engage a suitably experienced landscape contractor, with all appropriate insurances, to remove all bamboo growing along their rear boundary.
(3) The respondents are then to take any steps necessary to prevent the bamboo regrowing.
(4) The respondents are to give the applicants at least 2 days’ notice of the works in Order (2).
(5) The applicants are to allow any access required to their property for the purpose of cleaning up debris resulting from Order (2).
(6) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 2 metres in height at maturity.
(7) The exhibits are returned, except for Exhibits A, B, E and 2.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – whether the bamboo is planted to form a hedge – view obstruction – whether the view obstruction is severe – balancing of issues – privacy – burden of ongoing pruning orders – resolving the dispute – orders for removing bamboo

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, reg 4

Cases Cited:
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012
Wood v Barnes [2017] NSWLEC 1106

Category: Principal judgment
Parties: Douglas Charles Robinson (First Applicant)
Susan Elizabeth Robinson (Second Applicant)
Anthony John Nagel (First Respondent)
Elizabeth Mary Nagel (Second Respondent)
Representation:
Counsel:
N Hammond (Applicants)
L Sims (Respondents)
Solicitors:
Cordato Partners Lawyers (Applicants)
RGSLAW (Respondents)

File Number(s): 2020/344341
Publication restriction: No

Judgment

Background to the application

During the period that Susan and Douglas Robinson (‘the applicants’) have lived at their Balgowlah Heights property, they have seen the southward views from the rear of their dwelling diminished by changes in the surrounding landscape. They have applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders to prune or remove bamboo that grows on the adjoining property belonging to Elizabeth and Anthony Nagel (‘the respondents’).
Specifically, the Robinsons ask that the bamboo be pruned and maintained at a height of no more than 2.5 metres. Alternatively, they ask that the bamboo be removed and that the height of any replacement planting be restricted.
The Nagels dispute that such orders can be made. They are of the opinion that key jurisdictional tests in the Trees…

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 Robinson v Nagle

Details

AGLC: Robinson v Nagle [2021] NSWLEC 1356
Case: [2021] NSWLEC 1356
Decision Date: 18 June 2021

CaseChat Overview and Summary

Robinson v Nagle was a dispute heard by the Land and Environment Court of New South Wales. The applicants, the Robinsons, sought relief from the respondents, the Nagles, in relation to bamboo plants that had grown along the rear boundary of the Robinsons' property, encroaching onto their land. The Robinsons sought an order for the removal of the bamboo and an injunction to prevent its regrowth. They also sought to restrict the Nagles from planting any future hedges that could exceed 2 metres in height along their property boundary.

The legal issues before the court were whether the respondents' bamboo plants constituted a nuisance, and if so, whether the applicants were entitled to an injunction to prevent their regrowth and to require the removal of the existing plants. The court also needed to consider the appropriate scope of any injunction and what measures, if any, should be imposed to prevent the regrowth of the bamboo.

The court found that the bamboo plants did constitute a nuisance to the Robinsons as they had encroached onto their property, causing damage to their fencing and creating a trip hazard. The court granted the Robinsons' application, ordering the Nagles to remove the existing bamboo and to take all necessary steps to prevent its regrowth. The Nagles were also ordered to give the Robinsons at least 2 days’ notice before commencing the removal works. The Robinsons, in turn, were to allow access to their property for the purpose of cleaning up any debris resulting from the removal of the bamboo. Furthermore, the Nagles were prohibited from planting any future hedges along their rear boundary that could grow to more than 2 metres in height. The exhibits were returned to the parties, with certain ones retained by the court.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) Within 30 days of the date of these orders the respondents are to engage a suitably experienced landscape contractor, with all appropriate insurances, to remove all bamboo growing along their rear boundary.

(3) The respondents are then to take any steps necessary to prevent the bamboo regrowing.

(4) The respondents are to give the applicants at least 2 days’ notice of the works in Order (2).

(5) The applicants are to allow any access required to their property for the purpose of cleaning up debris resulting from Order (2).

(6) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 2 metres in height at maturity.

(7) The exhibits are returned, except for Exhibits A, B, E 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:	Robinson v Nagel [2021] NSWLEC 1356
Hearing dates:	12 April 2021
Date of orders:	18 June 2021
Decision date:	18 June 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) Within 30 days of the date of these orders the respondents are to engage a suitably experienced landscape contractor, with all appropriate insurances, to remove all bamboo growing along their rear boundary. (3) The respondents are then to take any steps necessary to prevent the bamboo regrowing. (4) The respondents are to give the applicants at least 2 days’ notice of the works in Order (2). (5) The applicants are to allow any access required to their property for the purpose of cleaning up debris resulting from Order (2). (6) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 2 metres in height at maturity. (7) The exhibits are returned, except for Exhibits A, B, E and 2.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – whether the bamboo is planted to form a hedge – view obstruction – whether the view obstruction is severe – balancing of issues – privacy – burden of ongoing pruning orders – resolving the dispute – orders for removing bamboo
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, reg 4
Cases Cited:	Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Wood v Barnes [2017] NSWLEC 1106
Category:	Principal judgment
Parties:	Douglas Charles Robinson (First Applicant) Susan Elizabeth Robinson (Second Applicant) Anthony John Nagel (First Respondent) Elizabeth Mary Nagel (Second Respondent)
Representation:	Counsel: N Hammond (Applicants) L Sims (Respondents) Solicitors: Cordato Partners Lawyers (Applicants) RGSLAW (Respondents)
File Number(s):	2020/344341
Publication restriction:	No