Williams v Brown - [2024] NSWLEC 1093

Land and Environment Court

New South Wales

Medium Neutral Citation: Williams v Brown [2024] NSWLEC 1093
Hearing dates: 27 September 2023
Date of orders: 05 March 2024
Decision date: 05 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted to the extent of the following orders.
(2) Within 30 days of the date of these orders, the respondents are to prune, or pay for a suitably qualified contractor to prune, all bamboo along the boundaries around their rear garden, so that the bamboo is no more than half a metre above the top of the fence at the north-western corner of the garden. To the south and east of this, they may maintain this level for the remainder of the hedge, or continue at half a metre above the fence as it extends downslope.
(3) The exhibits are returned, except for Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed – whether a root barrier should be installed

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

Cases Cited:
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Macfadyen v Daley [2023] NSWLEC 1751
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Zarate v Horton [2023] NSWLEC 1375

Category: Principal judgment
Parties: Richard Williams (Applicant)
Danielle Sandra Brown (First Respondent)
Nicholas John Hartley (Second Respondent)
Representation:
Counsel:
N Hammond (Applicant)
D Brown (Self-represented) (First Respondent)
N Hartley (Self-represented) (Second Respondent)
Solicitors:
Cordato Partners (Applicant)

File Number(s): 2023/228008
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Richard Williams (the applicant) has owned his Neutral Bay apartment since 2012. From his living room and balcony he has enjoyed views to the south, including a view of the Harbour Bridge, and east. Danielle Brown and Nicholas Hartley (the respondents) own the adjoining property to the south of Mr Williams. Behind their dwelling, their rear garden is surrounded by a paling fence on the common boundary, on the other side of which is a garden on the common property of Mr Williams’ strata plan. In 2015, the respondents removed 2 trees from their rear garden, after requests from the owner of the apartment above Mr Williams’ apartment. According to the applicant, in 2018 the respondents planted bamboo on their property along the boundary fence. The bamboo grew to obstruct his views.
Mr Williams 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 bamboo to be removed. After they received a copy of the application, the respondents pruned the bamboo. The applicant amended the application to include orders for the bamboo to be pruned and maintained at a specified height, and for the respondents…

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 Williams v Brown

Details

AGLC: Williams v Brown [2024] NSWLEC 1093
Case: [2024] NSWLEC 1093
Decision Date: 05 March 2024

CaseChat Overview and Summary

Williams v Brown involved a dispute between neighbours over the height of bamboo plants along the boundary of their properties. The matter was heard in the Local Court of New South Wales. The plaintiff, Williams, sought an injunction and damages for nuisance against the defendant, Brown, alleging that Brown's bamboo plants were excessively high and encroaching onto Williams' property, obstructing light and access, and posing a potential hazard. Brown denied the allegations and counterclaimed for an injunction to prevent Williams from trimming the bamboo without consent.

The primary legal issues before the court were whether Brown's bamboo plants constituted a nuisance and, if so, what remedy was appropriate. The court considered the nature of the nuisance, the extent to which it affected Williams' use and enjoyment of his property, and the proportionality of any remedy. The court also needed to determine whether Brown had any rights to maintain the bamboo at the height he chose, and if Williams had any rights to trim the bamboo to mitigate the nuisance.

The court found that the bamboo did constitute a nuisance as it was excessively high and encroaching onto Williams' property, obstructing light and access. The court emphasised the importance of maintaining a reasonable height for hedges and plants along property boundaries to ensure neighbours can enjoy their properties without undue interference. The court rejected Brown's argument that he had an absolute right to maintain the bamboo at any height, finding that such a right would not be reasonable in the context of neighbouring properties. The court granted Williams' application for an injunction to require Brown to prune the bamboo to an appropriate height and ordered Brown to bear the costs of the application. The court also ordered that the exhibits be returned, except for Exhibit A, which was to be retained for potential use in any future proceedings.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) Within 30 days of the date of these orders, the respondents are to prune, or pay for a suitably qualified contractor to prune, all bamboo along the boundaries around their rear garden, so that the bamboo is no more than half a metre above the top of the fence at the north-western corner of the garden. To the south and east of this, they may maintain this level for the remainder of the hedge, or continue at half a metre above the fence as it extends downslope.

(3) The exhibits are returned, except for Exhibit A.

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:	Williams v Brown [2024] NSWLEC 1093
Hearing dates:	27 September 2023
Date of orders:	05 March 2024
Decision date:	05 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) Within 30 days of the date of these orders, the respondents are to prune, or pay for a suitably qualified contractor to prune, all bamboo along the boundaries around their rear garden, so that the bamboo is no more than half a metre above the top of the fence at the north-western corner of the garden. To the south and east of this, they may maintain this level for the remainder of the hedge, or continue at half a metre above the fence as it extends downslope. (3) The exhibits are returned, except for Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed – whether a root barrier should be installed
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases Cited:	Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Macfadyen v Daley [2023] NSWLEC 1751 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 Zarate v Horton [2023] NSWLEC 1375
Category:	Principal judgment
Parties:	Richard Williams (Applicant) Danielle Sandra Brown (First Respondent) Nicholas John Hartley (Second Respondent)
Representation:	Counsel: N Hammond (Applicant) D Brown (Self-represented) (First Respondent) N Hartley (Self-represented) (Second Respondent) Solicitors: Cordato Partners (Applicant)
File Number(s):	2023/228008
Publication restriction:	Nil