Lazenby & ors v Bergquist [2014] NSWLEC 1147

Land and Environment Court New South Wales

Medium Neutral Citation: Lazenby & ors v Bergquist [2014] NSWLEC 1147 Hearing dates: 23 July 2014 Decision date: 23 July 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; bamboo; damage; no evidence of damage; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2014 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: APPLICANTS Keith Lazenby (first applicant) Brian Lazenby (second applicant) Barbara Cook (third applicant)

RESPONDENTS Mark Bergquist (first respondent) Constance Bergquist (second respondent) Representation: APPLICANTS Brian Lazenby (Litigant in person) Barbara Cook (Litigant in person)

RESPONDENTS No appearance File Number(s): 20213 of 2014

Judgment

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

The application 1Three siblings, Messrs. Lazenby and Ms Cook ("the applicants"), own a dwelling in a residential Murwillumbah street. The second applicant lives at the dwelling. Until recently a tall clump of bamboo grew on the neighbouring property, owned by the Bergquists ("the respondents"). The applicants became concerned that the bamboo was blocking sunlight to, and views from, their dwelling. They were also concerned that roots of the bamboo may interfere with and damage their sewer pipes. They originally applied to the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders from the bamboo's removal. Part 2A of the Act gives the Court jurisdiction to deal with the obstruction of sunlight and views caused by neighbouring hedges. 2Prior to the matter being heard, the respondents cut the bamboo almost to ground level. Any obstruction of sunlight or views must be assessed at the time of the hearing (see Tooth v McCombie [2011] NSWLEC 1004), so this prevented the applicants pressing this part of their application. As their concerns about the possibility of roots damaging their sewer remained, they amended their application seeking orders pursuant to Part 2 of the Act, on the grounds that roots of the neighbouring tree (bamboo) are likely to cause damage in future. They want the respondents to also remove the underground parts of the bamboo. The applicants have limited access to legal advice. 3The respondents' position regarding this issue is unknown. They did not file any material with the Court prior to the hearing. This morning, Mrs Bergquist was busy in her role at a childcare centre that operates on their property. At the prescribed time for the hearing she said her husband was on his way but was stuck in traffic and would be about ten minutes. It was 10:30 in the morning in Murwillumbah. The hearing began fifteen minutes later with no appearance from the respondents.