Machado v Zammit [2020] NSWLEC 1136

Land and Environment Court New South Wales

Medium Neutral Citation: Machado v Zammit [2020] NSWLEC 1136 Hearing dates: 18 March 2020 Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [12] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – boundary fence – bamboo – whether bamboo should be removed – replacement of fence Legislation Cited: Dividing Fences Act 1991 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW) Category: Principal judgment Parties: Elizabeth Machado (Applicant) Charles Zammit (First Respondent) Angelita Zammit (Second Respondent) Representation: E Machado (Litigant in person) (Applicant) M Machado (Agent) (Applicant) C Zammit (Litigant in person) (First Respondent) A Zammit (Litigant in person) (Second Respondent) File Number(s): 2019/381508 Publication restriction: No

Judgment

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

Background to the application 1. The timber paling fence along the rear boundary of Elizabeth Machado's North Epping property was replaced in 1992. In 2006, neighbours to her south planted bamboo between the fence on the common boundary and their pool wall, which is less than a metre from the fence. The fence has deteriorated and now needs replacing. 2. Ms Machado ('the applicant') has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) ('the Trees Act'), seeking orders for Charles and Angelita Zammit ('the respondents') to remove the bamboo at their own cost, with the parties then to share the cost of replacing the boundary fence. Ms Machado wants the Zammits to maintain any new hedge, or the bamboo hedge if it is not removed, so that it does not damage the new fence, including installation of a root barrier if bamboo is retained or replanted.