Kingsley-Smith v O’Brian & ors [2016] NSWLEC 1606

Land and Environment Court New South Wales

Medium Neutral Citation: Kingsley-Smith v O'Brian & ors [2016] NSWLEC 1606 Hearing dates: 15 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; Hedge – obstruction of sunlight and views; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 McDougall v Philip [2011] NSWLEC 1280 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Heather Kingsley-Smith (Applicant) Benn O'Brian (First Respondent) Zane O'Brian (Second Respondent) Noel Macnamara (Third Respondent) Lynne McPherson (Fourth Respondent) Representation: Applicant: Graeme Sproule (Agent) First Respondent: Benn O'Brian (Litigant in person) Second Respondent: Zane O'Brian (Litigant in person) Third & Fourth Respondents: Zane O'Brian (Agent) File Number(s): 270134 of 2016

Judgment 1. COMMISSIONER: In June 2015 the applicant, Ms Kingsley-Smith, purchased a property in Banora Point. Growing on the adjoining property to the north were several clumps/rows of bamboo. 2. The applicant has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking to remedy the impact of the bamboo on her property, potential injury to persons on her property, and on views from and sunlight to parts of her dwelling. 3. The applicant has appointed the previous owner of her property, Mr Sproule, as her agent in these proceedings. Mr Sproule continues to reside on the applicant's property. 4. The adjoining property has been recently sold. The respondents at the time the application was made were Mr and Ms O'Brian. The new owners, Mr MacNamara and Ms McPherson have been joined as third and fourth respondents and have appointed Ms O'Brian as their agent.