Maloney & anor v Todd & anor [2016] NSWLEC 1032

Land and Environment Court New South Wales

Medium Neutral Citation: Maloney & anor v Todd & anor [2016] NSWLEC 1032 Hearing dates: 21 January 2016 Date of orders: 04 February 2016 Decision date: 04 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; many possible causes of damage; uncertainty of nexus between trees and damage; hedge – obstruction of sunlight; obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: David and Selena Maloney (Applicants) David and Karen Todd (Respondents) Representation: Applicants: D and S Maloney (Litigants in person) Respondents: D and K Todd (Litigants in person) File Number(s): 20996 of 2015

Judgment 1. COMMISSIONER: The applicants contend that a row of bamboo growing at the rear of the respondents' garden and adjoining the common boundary has caused damage to their Green Point dwelling and severely obstructs sunlight to windows of their dwelling. 2. The applicants have applied under both s 7 Part 2, and s 14B Part 2A, of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). The preferred orders are the removal of the bamboo and its replacement with a more appropriate species, and compensation for damage caused to their dwelling. In the alternative, the applicants request that the bamboo be maintained at a height no greater than 1m above the dividing fence as measured from their property. 3. The compensation is a quote for $4360 + GST for the repair of render but does not include any structural repairs. The applicants are also seeking reimbursement of the cost of the engineer who inspected the property. In regards to this element of the claim, Commissioners of the Court do not have the power to award such costs. Should either party wish to claim 'costs' a Notice of Motion can be filed which would then be determined by a Judge or Registrar of the Court. 4. The respondents value the bamboo for the privacy it affords their property and for its aesthetic qualities. They contend that they spent considerable time researching the most appropriate species to use and selected a non-invasive, clumping form of bamboo. As recommended by the nursery, a root barrier was installed between the parties' properties. The respondents maintain that the bamboo has not damaged the applicants' dwelling and that the damage has arisen because of the renovations carried out by the applicants and other factors such as changing moisture levels in reactive clay soils.