Day v Acton [2022] NSWLEC 1461

Land and Environment Court New South Wales

Medium Neutral Citation: Day v Acton [2022] NSWLEC 1461 Hearing dates: 28 March 2022, 5 April 2022 and 19 April 2022 Date of orders: 01 September 2022 Decision date: 01 September 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: 1) The Pt 2A application is refused. 2) The Pt 2 application is granted to the extent of the following orders. 3) Within 30 days of the date of these orders, the Respondent is to remove, or engage and pay for a contractor to remove, all bamboo along that part of the Respondent's rear boundary that is the common boundary shared with the Applicants. 4) Within 30 days of the date of these orders the Applicants and the Respondent are each to obtain and provide to the other party at least one quote, made out to both the Applicants and the Respondent with each to pay 50% of the cost, from a fencing contractor for: a) removing the fence along their common boundary; b) constructing a new 1.8-metre timber paling fence, or another form of fence should they agree, along their common boundary. 5) Within 7 days of swapping fencing quotes in order (4), the parties are to select the cheapest of the fencing quotes, unless they agree on another quote. The parties are to engage the selected contractor under a fencing agreement, in which the Applicants are to pay 50% of the cost of the works and the Respondent is to pay 50% of the cost of the works, to carry out the fencing works as quoted in (4) within 90 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement. 6) The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day. 7) For 24 months from the date of these orders, each party is to remove any bamboo growing on their property along their common boundary. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the Applicant made reasonable effort – neighbouring bamboo – Pt 2 application – damage to fence – whether fence needs replacing – whether bamboo must be removed – Pt 2A application – bamboo hedge – obstruction of views – whether the obstruction is severe – pruning done by the Respondent Legislation Cited: Dividing Fences Act 1991, s 13A Trees (Disputes Between Neighbours) Act 2006, s 3, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E, 14F Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Category: Principal judgment Parties: Yvonne 'Angelina' Day (First Applicant) Graham Faichney (Second Applicant) David Acton (Respondent) Representation: Counsel: Y Day (Self-represented) (First Applicant) G Faichney (Self-represented) (Second Applicant) D Acton (Self-represented) (Respondent) File Number(s): 2021/331793 Publication restriction: No