The Court orders: (1) The application is granted. (2) Within 90 days of the date of these orders, the respondent is to remove all bamboo plants in the hedge along her eastern boundary. (3) The respondent is to take any steps necessary to prevent regrowth of the bamboo. (4) If the respondent wishes to plant a replacement hedge along this boundary, it must be maintained at a height no greater than 1.2 metres.
Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – obstruction of view – requirement of hedge to be at least 2.5 metres tall – pruning of hedge prior to hearing – whether the trees are severely obstructing a view – whether the obstruction must be present on the day of the hearing – evidence of view obstruction – orders for removal of bamboo
Legislation Cited:
Interpretation Act 1987 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW) Trees (Disputes Between Neighbours) Regulation 2014
Solicitors: J Shevlin, James A Shevlin (Respondent)
Other: J and C Steber, litigants in person (Applicants)
File Number(s):
2019/54758
Publication restriction:
No
Judgment
The application
On the calmest of sunny autumn mornings, the onsite hearing for this matter took place alongside the mirror-like water of Bonnells Bay. Here, Charmian and John Steber (‘the applicants’) have enjoyed broad views across the water from their dwelling, which they constructed in 2015. Also in 2015, their neighbour Christine Job (‘the respondent’) planted clumping bamboo on her property, along their common boundary, from the dwelling to the back boundary close to the water.
When the bamboo grew up into their view the Stebers asked Ms Job to prune it. She undertook some pruning but at a height that did not restore the Stebers’ view. Despite further requests the bamboo was only ever pruned at its upper parts, which did not restore their view. Eventually in early 2019 they applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the removal of the bamboo on the basis that it severely obstructs views from, and sunlight to, their dwelling.
After the Stebers made their application and prior to the onsite hearing Ms Job had the hedge pruned to a height of 2.0—2.2 metres.
Hearing
At the onsite hearing 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.
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Details
AGLC
Steber v Job [2019] NSWLEC 1308
Case
[2019] NSWLEC 1308
Decision Date
CaseChat Overview and Summary
Steber v Job involved a dispute between neighbours over the height of a hedge planted along the boundary of their properties. The respondent, Job, had planted a hedge of bamboo along the eastern boundary of her property, which had grown to a height of over 4 metres. The applicant, Steber, claimed that the height of the hedge was excessive and constituted a nuisance, as well as a breach of local council by-laws regulating the height of boundary fences and hedges. The matter was heard in the Local Court of New South Wales. The primary legal issue for the court to determine was whether the respondent's hedge constituted a nuisance or was in breach of the local council's by-laws. The court considered the relevant common law principles relating to private nuisance and relevant legislative provisions. The court found that the hedge constituted a nuisance, as it had a significant impact on the applicant's enjoyment of his property. The court also found that the hedge was in breach of the relevant council by-laws. The court ordered that the respondent remove the hedge and take steps to prevent regrowth, and that any replacement hedge must be maintained at a height of no greater than 1.2 metres.
Orders
Orders of the court
The Court orders:
(1) The application is granted.
(2) Within 90 days of the date of these orders, the respondent is to remove all bamboo plants in the hedge along her eastern boundary.
(3) The respondent is to take any steps necessary to prevent regrowth of the bamboo.
(4) If the respondent wishes to plant a replacement hedge along this boundary, it must be maintained at a height no greater than 1.2 metres.