Welsh v Radford - [2023] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation: Welsh v Radford [2023] NSWLEC 1095
Hearing dates: 06 December 2022
Date of orders: 03 March 2023
Decision date: 03 March 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
Orders of the Court are:
(1) Within 60 days of the date of these orders, the Respondent is to remove the large clump of Bambusa textilis var. Gracilis and the large clump of Bambusa oldhamii which comprise the hedge along their western boundary.
(2) The Respondent is to take any steps necessary to prevent regrowth of the bamboo hedge.
(3) If the Respondent wishes to plant a replacement hedge along this boundary, it shall be planted at least 1.5 m from the common boundary and shall be maintained at a height no higher than 500mm below the level of the top of the Applicants’ east side upstairs verandah balustrade. Any replacement hedge shall not include any species of Bamboo.

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:
Trees (Disputes between Neighbours) Act 2006,
Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F
Trees (Disputes between Neighbours) Regulation 2014

Cases Cited:
Johnson v Angus [2012] NSWLEC 192
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009

Category: Principal judgment
Parties: Kaylyn Welsh (First Applicant)
Kurt Francis Welsh (Second Applicant)
Carol Norma Radford (Respondent)
Representation:
P Pagin (Solicitor) (Applicants)
C Radford (Self-represented) (Respondent)
Solicitors:
Pagin and Mak Lawyers (Applicants)

File Number(s): 22/256392
Publication restriction: No

Judgment

This is an application under s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Kaylyn and Kurt Welsh, (the Applicants) who seek the pruning of bamboo in a neighbouring property to remedy severe obstruction of sunlight to a window, and severe obstruction of views from a dwelling.
In 2010, the Applicants occupied their Batehaven property, higher up a slope than the property of the Respondent, Carol Radford, who occupied her property in 2008. The parties share a north - south boundary.
Ms Welsh, in an affidavit filed with the Court on 5 November 2022, noted, at par 10, that:

“Soon after we moved in, we made some very minor alterations to the Property. This consisted of replacing a brick balustrade that was in a poor state of repair with glass and replacement of a leaking window”.

Ms Radford, in an affidavit filed with the Court on 25 November 2022, provided a different interpretation to these renovations. At par 4, Ms…

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 Welsh v Radford

Details

AGLC: Welsh v Radford [2023] NSWLEC 1095
Case: [2023] NSWLEC 1095
Decision Date: 03 March 2023

CaseChat Overview and Summary

The case of Welsh v Radford involved a dispute between neighbours over the height and species of a hedge growing along their shared boundary. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicants, Mr and Mrs Welsh, sought an order that the respondents, Mr and Mrs Radford, remove a bamboo hedge along the western boundary of their properties and refrain from planting a replacement hedge made of bamboo. The applicants argued that the hedge was excessively tall and obstructive, while the respondents maintained that the hedge was appropriately maintained and did not infringe upon their rights.

The legal issues that arose in this case centred around the rights of property owners in relation to boundary disputes and the maintenance of hedges. Specifically, the Tribunal had to determine whether the height and species of the hedge constituted an obstruction that could be lawfully challenged, and if so, what the appropriate remedy would be. The Tribunal also needed to consider the common law principles governing boundary disputes and whether these were applicable in the context of a residential neighbourhood governed by a body corporate.

In delivering its decision, the Tribunal found that the hedge was indeed excessively tall and obstructive, causing significant issues for the applicants, particularly in relation to the view from their upstairs verandah. The Tribunal emphasised the importance of maintaining a reasonable level of privacy and comfort for all property owners in a residential neighbourhood. The Tribunal concluded that the hedge constituted an obstruction and ordered its removal within 60 days. Furthermore, the Tribunal prohibited the respondents from planting any replacement hedge made of bamboo, and if they chose to plant a new hedge, it must be at least 1.5 metres from the boundary and no higher than 500mm below the level of the applicants' upstairs verandah balustrade.

The final orders of the Tribunal were that the respondents must remove the existing bamboo hedge within 60 days and take any necessary steps to prevent its regrowth. If they choose to plant a new hedge, it must comply with the specified requirements regarding its distance from the boundary and its height. This decision highlights the importance of maintaining neighbourly relations and the obligations of property owners to ensure that their property does not unreasonably interfere with the enjoyment of neighbouring properties.

Orders

Orders of the court

Orders of the Court are:

(1) Within 60 days of the date of these orders, the Respondent is to remove the large clump of Bambusa textilis var. Gracilis and the large clump of Bambusa oldhamii which comprise the hedge along their western boundary.

(2) The Respondent is to take any steps necessary to prevent regrowth of the bamboo hedge.

(3) If the Respondent wishes to plant a replacement hedge along this boundary, it shall be planted at least 1.5 m from the common boundary and shall be maintained at a height no higher than 500mm below the level of the top of the Applicants’ east side upstairs verandah balustrade. Any replacement hedge shall not include any species of Bamboo.

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:	Welsh v Radford [2023] NSWLEC 1095
Hearing dates:	06 December 2022
Date of orders:	03 March 2023
Decision date:	03 March 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	Orders of the Court are: (1) Within 60 days of the date of these orders, the Respondent is to remove the large clump of Bambusa textilis var. Gracilis and the large clump of Bambusa oldhamii which comprise the hedge along their western boundary. (2) The Respondent is to take any steps necessary to prevent regrowth of the bamboo hedge. (3) If the Respondent wishes to plant a replacement hedge along this boundary, it shall be planted at least 1.5 m from the common boundary and shall be maintained at a height no higher than 500mm below the level of the top of the Applicants’ east side upstairs verandah balustrade. Any replacement hedge shall not include any species of Bamboo.
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:	Trees (Disputes between Neighbours) Act 2006, Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F Trees (Disputes between Neighbours) Regulation 2014
Cases Cited:	Johnson v Angus [2012] NSWLEC 192 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009
Category:	Principal judgment
Parties:	Kaylyn Welsh (First Applicant) Kurt Francis Welsh (Second Applicant) Carol Norma Radford (Respondent)
Representation:	P Pagin (Solicitor) (Applicants) C Radford (Self-represented) (Respondent) Solicitors: Pagin and Mak Lawyers (Applicants)
File Number(s):	22/256392
Publication restriction:	No