Hough & anor v Rettenmaier & anor [2010] NSWLEC 1354

Land and Environment Court of New South Wales

CITATION : Hough & anor v Rettenmaier & anor [2010] NSWLEC 1354

APPLICANTS N & D Hough PARTIES : RESPONDENTS P Rettenmaier & K Greig

FILE NUMBER(S) : 20639 of 2010

CORAM: Moore SC - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Impact on views; hedge of bamboo

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007

DATES OF HEARING: 13 October 2010

EX TEMPORE JUDGMENT DATE : 13 October 2010

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC HEWETT AC

13 October 2010

10/20639 Hough & anor v Rettenmaier & anor

JUDGMENT

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

1 SENIOR COMMISSIONER: These proceedings are the first proceedings heard and determined by the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Part 2A came into effect from 2 August 2010 and permits the Court to deal with applications concerning high hedges that obscure sunlight or views.

2 There are a variety of jurisdictional prerequisites that the Court must consider and about which the Court must be satisfied prior to its jurisdiction being enlivened under Part 2A. We propose to step through each of those jurisdictional prerequisites and indicate how we are satisfied that they are met, in these proceedings, to the extent that they are so met. 3 The first provision that is relevant is that which arises under s 14A(1) of the Trees Act. It requires that four elements be satisfied. The first is that the plants that are involved are trees. In these proceedings, the plants that are involved forming the hedge that is the subject of the application are bamboo, which is a plant that in botanical terms is a grass. However, as a consequence of cl 4 of the Trees (Disputes Between Neighbours) Regulation 2007 bamboo is proscribed as being a tree for the purposes of the definition of "tree" in s 3(1) of the Trees Act. As a consequence we are satisfied that that element of s 3 is as satisfied.