Veleski v Masterton

[2023] NSWLEC 1399

Land and Environment Court

New South Wales

Medium Neutral Citation:

Veleski v Masterton [2023] NSWLEC 1399

Hearing dates:

27 February 2023

Date of orders:

27 February 2023

Decision date:

27 February 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Is bamboo hedge severely obstructing views, or sunlight – damage to property and risk of injury – apprehension of additional damage to property – bamboo debris falling on applicant’s land

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 14, Pt 2A, ss 14A, 14B, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Gieth v Athamawa [2023] NSWLEC 1121

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Hendry v Olsson [2010] NSWLEC 1302

Hinde v Anderson & anor [2009] NSWLEC 1148

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Branka Veleski (Applicant)
Kristie-Lee Masterton (Respondent)

Representation:

B Veleski, Self-represented (Applicant)
K Masterton, Self-represented (Respondent)

File Number(s):

2022/ 352898

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

COMMISSIONER:

Background

1. Ms Branka Veleski, the applicant, owns and occupies a property in Kanahooka, in the Illawarra region, and shares a side boundary (the boundary) with Ms Kristie-Lee Masterton, the respondent. The boundary, delineated by a metal panel fence about 1.8 metres (m) tall, extends from south-west at the street entrance to north-east at the rear, and the respondent’s property is north-west of the applicant’s land.

2. The dispute concerns a row of Bambusa textilis ‘Gracilis’ (Slender Weaver’s Bamboo) (the bamboo), planted adjacent to the common boundary in the respondent’s rear yard. For the purposes of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, prescribes bamboo as a ‘tree’.

3. Ms Veleski claimed that the bamboo is causing, or may cause, damage to her house and rear yard, and that it is likely to cause injury to persons. The applicant also claims that the bamboo forms a hedge causing a severe obstruction of views from her dwelling and a severe obstruction of sunlight to a window of her dwelling, and to her rear yard.

4. The respondent has resisted Ms Veleski’s proposed removal of the bamboo, but the parties have negotiated by text messages for a protracted period. The respondent attempted various measures to mitigate the bamboo’s impact on the applicant, but the applicant maintained that bamboo removal was the only viable solution to remedy her problems.

5. Having reached an impasse, Ms Veleski submitted an application, pursuant to s 7 of…