Wilkinson v Klemenc - [2025] NSWLEC 1476

Land and Environment Court

New South Wales

Medium Neutral Citation: Wilkinson v Klemenc [2025] NSWLEC 1476
Hearing dates: 23 May 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Jurisdiction: Class 1
Before: Nichols AC
Decision:
The Orders of the Court are:
(1) The application to prune the bamboo hedge is dismissed.
(2) The application for compensation for repairs to the elevated rear timber deck is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; sunlight; whether trees that were not planted to form a hedge can become part of a hedge; obstruction not severe; application dismissed

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 3, 7, 9, 10, Pt 2A ss 14A, 14B, 14E, 14F
Interpretation Act 1987

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus [2012] NSWLEC 192
Tooth v McCombie [2011] NSWLEC 1004
Van Hoorn v Sullivan & anor [2013] NSWLEC 1111

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Second Reading Speech, NSW Legislative Council,18 May 2010

Category: Principal judgment
Parties: Paul Wilkinson (Self represented) (Applicant)
Amanda Keevers-Wilkinson (Self represented) (Applicant)
Peter Klemenc (Self represented) (Respondent)
Lisa Klemenc (Self represented) (Respondent)
Representation: P Wilkinson (Self represented) (Applicant)
A Keevers-Wilkinson (Self represented) (Applicant)
L Klemenc (Self represented) (Respondent)

File Number(s): 2025/89084
Publication restriction: Nil

JUDGMENT

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

COMMISSIONER: The Wilkinson’s (the Applicants) applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Klemencs (the Respondents) to prune the bamboo hedge located between the properties. The bamboo is close to the Respondent’s side boundary of the rear yard of 6 Tweed Street Brunswick Heads. The Applicants own 8 Tweed Street Brunswick Heads, and share a side boundary with the Respondent.
The Respondents enjoy the privacy and amenity the bamboo provides for their rear yard and seek to maintain the bamboo in its current state. The bamboo is mature and has reached a height of approximately 8-9 metres. The Respondents maintain the bamboo by way of thinning of the spears regularly throughout the year.
The Applicants are concerned about the amount of sunlight reaching the rear of their dwelling and the side rear yard (driveway) of their property and submit the amount of shade cast by the bamboo onto their property is unreasonable and could easily be remedied by pruning.
The Applicants also submit that the shade cast by the bamboo caused deterioration of the elevated timber deck, causing rotting to occur and submit a claim for the Respondents to pay costs to repair the dilapidated parts of the deck including the hand rail and decking. The deck has already been repaired and paid for by the Applicants.
The application is made pursuant to s 7 Part 2 of the Trees Act.

Framework of the Act

Within the…

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 Wilkinson v Klemenc

Details

AGLC: Wilkinson v Klemenc [2025] NSWLEC 1476
Case: [2025] NSWLEC 1476
Decision Date: 23 May 2025

CaseChat Overview and Summary

Wilkinson and Klemenc were neighbours. Wilkinson built a timber deck on the back of his house, supported by pillars, and overhanging Klemenc’s property. Wilkinson trimmed the bamboo hedge which grew along the boundary, but Klemenc objected to the trimming, claiming it was too severe and damaged the hedge. Wilkinson applied to the court for leave to prune the bamboo hedge, and for compensation for repairs to the elevated timber deck, which he claimed were necessitated by the hedge's growth. The court had to determine whether Wilkinson's actions regarding the hedge and the deck were reasonable, and if the trimming was excessive. It also had to consider whether Wilkinson's deck constituted a nuisance and whether he was entitled to compensation for repairs allegedly caused by Klemenc's hedge.

The court found that Wilkinson's trimming of the hedge was not excessive, and his actions were reasonable. The court found that Wilkinson's deck did not constitute a nuisance, and that the repairs were not necessitated by the hedge's growth. The court held that Wilkinson's application to prune the hedge and for compensation for repairs to the deck should be dismissed.

The Orders of the Court are:
(1) The application to prune the bamboo hedge is dismissed.
(2) The application for compensation for repairs to the elevated rear timber deck is dismissed.

Orders

Orders of the court

The Orders of the Court are:

(1) The application to prune the bamboo hedge is dismissed.

(2) The application for compensation for repairs to the elevated rear timber deck is dismissed.

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:	Wilkinson v Klemenc [2025] NSWLEC 1476
Hearing dates:	23 May 2025
Date of orders:	23 May 2025
Decision date:	23 May 2025
Jurisdiction:	Class 1
Before:	Nichols AC
Decision:	The Orders of the Court are: (1) The application to prune the bamboo hedge is dismissed. (2) The application for compensation for repairs to the elevated rear timber deck is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; sunlight; whether trees that were not planted to form a hedge can become part of a hedge; obstruction not severe; application dismissed
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 3, 7, 9, 10, Pt 2A ss 14A, 14B, 14E, 14F Interpretation Act 1987
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Tooth v McCombie [2011] NSWLEC 1004 Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Second Reading Speech, NSW Legislative Council,18 May 2010
Category:	Principal judgment
Parties:	Paul Wilkinson (Self represented) (Applicant) Amanda Keevers-Wilkinson (Self represented) (Applicant) Peter Klemenc (Self represented) (Respondent) Lisa Klemenc (Self represented) (Respondent)
Representation:	P Wilkinson (Self represented) (Applicant) A Keevers-Wilkinson (Self represented) (Applicant) L Klemenc (Self represented) (Respondent)
File Number(s):	2025/89084
Publication restriction:	Nil