Ankerholz-Potts v Cooper [2023] NSWLEC 1213

Land and Environment Court New South Wales

Medium Neutral Citation: Ankerholz-Potts v Cooper [2023] NSWLEC 1213 Hearing dates: 31 January 2023 Date of orders: 31 January 2023 Decision date: 31 January 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [30]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees have caused, or are causing, damage to applicant's property; do s (12) considerations outweigh impact of damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7,8,9,10,12 Trees (Disputes between Neighbours) Regulation 2019, cl 4 Cases Cited: Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Sonya Ankerholz-Potts (Applicant) Rebecca Cooper (Respondent) Representation: S Ankerholz-Potts (Self-represented)(Applicant) R Cooper (Self-represented) (Respondent) File Number(s): 2022/339185 Publication restriction: Nil

Judgment

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

Background 1. The applicant, Ms Sonya Ankerholz-Potts, shares a rear property boundary with the respondent, Ms Rebecca Cooper, in Warilla, in the Illawarra region. Both parties have occupied their properties for at least 20 years. The common boundary is oriented south-east to north-west, and the applicant also shares a common rear boundary with the respondent's north-western side neighbour. 2. Ms Cooper, a keen gardener, established dense plantings in garden beds on each boundary of her rear yard, which provide both privacy from neighbouring properties and considerable aesthetic amenity. The rear garden, adjacent to the common boundary, is dominated by Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo), but also contains Golden Cane Palms, Bangalow Palms (together known as the palms), and other small trees. A Jacaranda tree, said to be self-sown, is growing in the garden's north-western corner, and most of its foliage overhangs the respondent's side boundary. 3. In 2018, the applicant, at her expense, replaced her rear timber fence with a Colorbond metal panel fence, along the boundary she shares with both rear neighbours. The respondent's bamboo, being long established, had developed into large clumps with culms (stems) reaching about 9 metres (m) tall. In spreading towards the boundary, the bamboo had exerted pressure on the fence, which was leaning towards the applicant's land. The tall culms also lean over the applicant's rear yard, and some had bent and broken in the wind and impacted the applicant's garage roof. 4. The applicant and her spouse requested that the respondent maintain the bamboo and other plants to prevent fence damage and contain the bamboo, without success. 5. Consequently, Ms Ankerholz-Potts made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders to remedy damage that trees have allegedly caused, are causing, or are likely to cause in the near future.