Zarate v Horton

[2023] NSWLEC 1375

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zarate v Horton [2023] NSWLEC 1375

Hearing dates:

20 June 2023

Date of orders:

19 July 2023

Decision date:

19 July 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The Pt 2 application is granted.

(2) The Pt 2A application is granted.

(3) The respondents are to engage and pay for a suitably experienced and insured contractor to remove all bamboo from their property and the applicant’s property within 2 metres of any common boundary shared with the applicant. These works are to be completed within 30 days of the date of these orders; and are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The applicant is to provide any access required to complete the works in order (3) during reasonable hours, on 48 hours’ notice from the respondents.

(5) The respondents are to take any steps necessary to prevent bamboo regrowing on their property within 2 metres of any common boundary shared with the applicant.

(6) Any further hedge plantings on the respondents’ property within 2 metres of any common boundary shared with the applicant are to be limited to plant species that grow no taller than 3 metres.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – damage is likely in the near future – orders for tree removal – Pt 2A application – bamboo – obstruction of sunlight and views – whether the obstruction is severe – benefits of the bamboo – whether the bamboo should be maintained or removed

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

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

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category:

Principal judgment

Parties:

Anibal Zarate (Applicant)
Anthea Horton (First Respondent)
Gary Horton (Second Respondent)

Representation:

Counsel:
A Zarate (Self-represented) (Applicant)
J Burrell (Solicitor) (Respondents)

Solicitors
Burrell Solicitors (Respondents)

File Number(s):

2023/95290

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Anibal Zarate (the applicant), of Bangalow in northern New South Wales, has applied to the Court seeking orders for the removal of bamboo (the trees) growing on the neighbouring property of Anthea and Gary Horton (the respondents). Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), Mr Zarate seeks orders for tree removal due to damage the bamboo has caused, or is likely to cause, to his property. Pursuant to s 14B (Pt 2A) of the Trees Act, he seeks orders for the bamboo’s removal on the grounds that it obstructs his access to sunlight and views.

2. The respondents’ alternative orders are…