Bao v Mylonas [2017] NSWLEC 1216

Land and Environment Court New South Wales

Medium Neutral Citation: Bao v Mylonas [2017] NSWLEC 1216 Hearing dates: 23 December 2016 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph (37). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); bamboo; damage to fence; orders for fence replacement; hedge; obstruction of sunlight; severe; orders for pruning. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Minggang Bao (Applicant) George Mylonas (Respondent) Representation: Minggang Bao, litigant in person (Applicant) Michael Arch, solicitor (Respondent) File Number(s): 229175 of 2016 Publication restriction: No

Judgment

Background 1. Mr Mylonas ('the respondent') lives in an inner city single-storey terrace house, part of a row. Houses in the row have small back gardens, or courtyards, facing northeast. Beyond Mr Mylonas' rear boundary, to the northeast, is a 4-storey block of units. 2. In or around 1999 Mr Mylonas planted bamboo around the perimeter of his rear courtyard to screen the view of the brick apartment block, to provide privacy and to create a serene enclosed space. The bamboo, now 10-12 metres tall, has achieved those aims, forming a green screen around his courtyard. 3. In 2002 Mr Bao ('the applicant') purchased the property to Mr Mylonas' southeast. The bamboo was approximately 8 metres tall at that time. In 2004 Mr Bao obtained consent for a Development Application for improvement works to the rear part of his dwelling. The works were done in 2006. 4. Over time Mr Bao found the bamboo reduced the amount of sunlight to the rear of his dwelling and his garden. Debris from the bamboo fell in his garden, onto his roof and into guttering. The fence extending along the common boundary, from the rear of his dwelling, became displaced. Mr Bao approached his neighbour, seeking relief from these issues. 5. Mr Mylonas has taken no action, wishing to maintain the bamboo's benefits that he enjoys. So Mr Bao has applied to the Court, pursuant to both Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the bamboo to be pruned and maintained at a height of 2.5 metres or lower, and for the fence to be fixed. The application under Part 2 is made on the basis that bamboo has damaged the fence. The Part 2A application arises from the obstruction of sunlight. 6. The hearing took place onsite, allowing for a view of the relevant matters before each party made submissions.