Carter v MKTK Pty Ltd [2021] NSWLEC 1787

Land and Environment Court New South Wales

Medium Neutral Citation: Carter v MKTK Pty Ltd [2021] NSWLEC 1787 Hearing dates: 15 September 2021 Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [50] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – neighbouring bamboo – whether the bamboo has caused damage to the applicant's property – Pt 2A application concerning obstruction of sunlight – whether sunlight to a window is obstructed – benefits of the bamboo – balancing interests of the parties – orders for pruning bamboo and installing a root barrier Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10 & 12, Pt 2A ss 14B, 14D, 14E & 14F Cases Cited: McDougall v Philip [2011] NSWLEC 1280 Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Newcastle Development Control Plan 2012 Category: Principal judgment Parties: Rainnie Carter (Applicant) MKTK Pty Ltd (Respondent) Representation: R Carter (Litigant in Person) (Applicant) P Kilmurray (Solicitor) (Respondent)

Solicitors Peter Kilmurray Lawyers (Respondent) File Number(s): 2021/165823 Publication restriction: No

Judgment

Background to the application 1. COMMISSIONER: Rainnie Carter ('the applicant') purchased her Stockton property in 2014, next door to the Gladstone Hotel ('the hotel'). Ms Carter has become aware of several issues while living next door to the hotel, some of which she has been able to resolve, others not. Mark Keegan is the director of MKTK Pty Ltd ('the respondent'), the company that owns the hotel. Other proceedings involving Ms Carter and Mr Keegan apparently remain afoot in another Court. Mentioned by Mr Keegan, those proceedings are only relevant here in that they reflect the state of the relationship between the parties and might therefore influence how, if orders are to be made, any works might be ordered so as to minimise the potential for future conflict between the parties. 2. Ms Carter has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders relating to bamboo on the hotel's land next to their common boundary. She seeks orders for the respondent to remove all bamboo within both the hotel's grounds and her property, and restrictions on any future planting along the common boundary.