Economos & Anor v Davis

Category: Principal judgment

Parties: Peter George Economos (First Applicant)
Aleksandra Medeeva (Second Applicant)
Terrence James Davis (Respondent)

Representation: Counsel:
Ms Estalote Astill (Agent) (Applicant)
Ms Davis (Agent) (Respondent)

File Number(s): 2025/00281461

Publication restriction: Nil

JUDGMENT

Introduction

1. This appeal concerns a dispute over the view impacts caused by a bamboo hedge. At first instance, Acting Commissioner Nichols, who heard the dispute, considered that the view impacts caused by the hedge warranted the grant of relief in the form of an order for pruning: Economos v Terrence [2025] NSWLEC 1078. The main ground of this appeal, which is brought by the Applicants who were successful before the Acting Commissioner, is that his judgment contains inconsistencies, and is inherently contradictory, and as such the final orders made do not reflect the Acting Commissioner’s intentions.

2. For the reasons stated below, on a narrow reading of parts of the Acting Commissioner’s judgment it could be argued that there is an element of inconsistency with other findings made. Read as a whole however, the critical findings of fact made by the Acting Commissioner are clear and certain, and are consistent with the final orders he made. None of the other grounds of appeal could be maintained. I have therefore dismissed the appeal.

First Judgment of the Acting Commissioner

3. On 14 February 2025, the Acting Commissioner delivered judgment (the First Judgment) on an application brought under s 14B of the Trees (Disputes Between Neighbours) Act 200**6 (NSW) (Trees Act) by Mr Economos and Ms Medeeva to “remedy, restrain or prevent a severe obstruction of” views from their land caused by the planting of a bamboo hedge by the Respondent adjacent and parallel to the eastern boundary of his property.

4. There is no dispute between the parties that the Applicants purchased their property in 2014, and that the Respondent planted the bamboo hedge in 2024.

5. The Applicants complain that the bamboo hedge would obstruct views they enjoy from their property over Lake Illawarra. Unable to resolve their concerns with the Respondent, they commenced their tree dispute matter under the Trees Act in Class 2 of this Court’s jurisdiction. The primary order the Applicants sought was for the removal of the bamboo hedge. In the alternative, they sought an order that the hedge be pruned to a “height not exceeding 4 metres from ground level”.

6. As part of the hearing, the Acting Commissioner conducted a view, which commenced with an inspection of the Respondent’s rear yard. At this time, the bamboo hedge was approximately 4.5 metres above ground level: First Judgment at [7].

7. The Court view then moved to the Applicants’ rear deck, from which the Acting Commissioner was able to assess any view impacts. The Acting Commissioner found that there would be “severe obstruction” of views by the bamboo hedge if it grew to a height of 5 metres or more above ground level. Accordingly, he granted the application, and made an order that the Respondent “prune and maintain the bamboo hedge growing inside the r**espondent’s eastern boundary to a height level with 5 metres above ground level (or 3.5 metres above the existing Colorbond fence). This hedge height is to be uniform along the eastern property boundary following the natural slope of the land. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn”: First Judgment at [29(2)].

8. The Applicants were unhappy with aspects of the First Judgment for reasons explained below. Rather than initially commencing an appeal under s 56A of the Land and Environment Court Act 1979 (NSW) (Court Act), they filed a motion under the slip rule (Uniform Civil Procedure Rules (2005) (UCPR) r 36.17) which provides that:

“If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.”

9. In their motion the Applicants sought an order, inter alia, to change the pruning order made by the Acting Commissioner to require the height of the hedge to be kept at 4 metres rather than 5 metres. That motion was then amended such that the Applicants again sought an order for removal of the bamboo hedge, with the 4 metre pruning order as an alternative. That amended motion was heard by the Acting Commissioner and resulted in his second judgment: Economos v Davis [2025] NSWLEC 1407 (Second Judgment). Whether or not r 36.17 of the UCPR was the appropriate means of seeking an alteration of the orders to the extent sought in the amended motion was not considered by the Acting Commissioner. Instead, in his Second Judgment, discussed later in more detail, the Acting Commissioner invoked the slip rule to substitute the Respondent’s first name with his last name (no doubt a proper application of the slip rule), and to slightly modify his pruning order such that the maximum height of the hedge was to remain at no more than 5 metres, but in lieu of being pruned twice a year, he amended his order such that it be pruned “at least twice each year”.

10. Being also dissatisfied with the Acting Commissioner’s Second Judgment, the Applicants brought this appeal under s 56A of the Court Act.

Resolution of Appeal

Ground 1

11. The main argument on appeal, reflected in Grounds 1(a) and (3) of the Summons of Appeal, and Parts 1 to 3 of the Applicant’s written submissions, was that the Acting Commissioner had erred in law because:

(a) the First Judgment has internal inconsistencies and contradictions; and (b) as a consequence, the pruning orders made by the Acting Commissioner in both judgments do not reflect his real intent or factual findings.

12. Ms Estalote Astill, who was granted leave to appear as Agent for the Applicants, drew the Court’s attention to [14] of the First Judgment, where the Acting Commissioner made a finding that the bamboo hedge had reached a height at the time of the Court view of 4.5 metres. She then referred to these paragraphs in the judgment:

“In applying those principles to the hedge, the view in contention spans approximately 45 degrees of lake water.

… the extent of the impact for the whole of the property is severe. The views from the rear living area and the adjacent deck, which is included as a living area under the Act, are blocked by Mr Terrence’s [sic] bamboo hedge. This will very soon be exacerbated through the vigorous growth of the bamboo.

Though the Court sets a high bar when considering the word 'severe', I am satisfied the trees that form the hedge are severely obstructing a view from a dwelling situated on the applicants land, and the Act is therefore engaged (s 14E(2)(a)(ii))”: First Judgment at [20]-[22].

13. She also referred to [24] of the First Judgment, where the Acting Commissioner found:

“the lake water view across… the applicant’s property is and will be severely affected by the growth of the bamboo.

…The obstructed view is from a living room and rear elevated deck, and the view is severely restricted by the hedge without regular pruning.”

14. It was submitted that the Acting Commissioner had made a finding of fact that the Applicant’s views of Lake Illawarra were “severely obstructed” by the hedge at a height of 4.5 metres above ground level. It was submitted this was inconsistent with the making of an order whereby the hedge could reach a height of 5 metres before pruning needed to be done.

15. The submissions made on the Applicants’ behalf are not without any force. However, there are two other important paragraphs of the Acting Commissioner’s judgment that need to be considered, that are as follows:

“In summary, pruning of the hedge will be ordered so the lake views are retained for the applicant (to a height of 5 metres above ground level), while retaining most of the hedge’s benefits of privacy and landscape amenity for Mr Terrence [sic]. This will result in little loss of amenity for the respondent, and significant benefit for the applicants.

…

Though the impact to views may seem currently not severe, it is likely to significantly worsen in the near future unless regular pruning of the hedge is not undertaken. The benefits the hedge provides will not be much affected, as long as a pruning program is employed which maintains the screening benefit the hedge provides for the respondent, while maintaining a maximum height to maintain views from the applicant’s property”: First Judgment at [25] and [27].

16. While not sitting absolutely perfectly with what the Acting Commissioner said at [21]-[22] and [24] of the First Judgment, in my view these additional paragraphs and findings, and the orders he made, make it sufficiently clear that the finding of the Acting Commissioner was that at a height of 5 metres, sufficient views were retained by the Applicants, and that this was the height at which there was a balance between the Respondent’s privacy and the Applicants’ views. It is clear that at a height up to 5 metres, the Acting Commissioner did not consider that the hedge caused a “severe obstruction” to the Applicants’ views.

17. This was made more abundantly clear in the Second Judgment, where the Acting Commissioner framed the findings he made in the First Judgment this way:

“Written submissions… are relied upon by the Applicants. These submissions include an assertion that I concluded that the hedge already constituted a severe obstruction at 4.5 metres height, and that twice yearly pruning was insufficient and not in accordance with my original finding that the obstruction would worsen without regular pruning. My findings after the original hearing were based on my own observations at the time, and I reached a conclusion that the hedge that caused a severe obstruction was ‘likely in the near future’ to cause a severe obstruction, and not that the severe obstruction existed at the time of the hearing.

…

The Applicants’… submissions contend that the height of hedge pruning contained in order 2 relies on a clerical error and error in logic in that it prescribes a maximum hedge height of 5 metres above ground level… and when juxtaposed with the original judgment which contained a finding of severe obstruction at 4.5 metres was illogical. For clarity, the original finding of severe obstruction referred to an imminent severe obstruction and not one that already existed. The pruning height of 5 metres above ground level will remain in the orders. I find that this height will balance the preservation of views of the Applicants with the desire for privacy by the Respondent.

…

I observed during the onsite hearing that maintaining the hedge at a height 5 metres above ground level would maintain the Respondents’ privacy while restoring most of the Applicants’ view. Following the balance found between view preservation and privacy in found in Ziaziaris v Li [2021] NSWLEC 1373 the pruning height of 5 metres above ground level will remain in order 2 however the timing of pruning will be modified as detailed below”: Second Judgment at [4], [7] and [8].

18. In Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2), Preston CJ observed that reasons on a particular matter in a judgment “need to be read in context”: SJD DB2 at [100]. His Honour then referred to the judgment of Bell P (as the Chief Justice then was) in NSW Land and Housing Corporation v Or**r (2019) 100 NSWLR 578; [2019] NSWCA 231, where his Honour set out (inter alia) these principles at [77]:

“(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111;

(iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251;

(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287*; Wu Shan Liang* at 272, 291*;*

(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291.”

19. Further, the details and coherence required of reasons of a primary judgment reviewed on appeal is not a standard of perfection, but a “minimum acceptable standard”: SJD DB2 at [93].

20. Read as a whole, the First Judgment makes it clear in my view that the Acting Commissioner made a finding of fact that the Respondent’s hedge did not cause a “severe obstruction” of the Applicants’ views as required by s 14B of the Trees Act until the hedge would exceed a height of 5 metres above ground level. This is clear if the First Judgment is read as a whole, and is reinforced by the Second Judgment. Therefore, I do not consider Grounds 1(a) and 3 of the appeal to be made out. To the extent it was contended by the Applicants that the Acting Commissioner was wrong in fact in relation to the extent of view obstruction above 4 metres, this is outside the scope of appeal under s 56A of the Court Act, which is limited to questions of law.

Ground 2

21. Ground 2 of the appeal, reflected in Part 4 of the Applicants’ written submissions, was that the Acting Commissioner had given too much weight to the privacy concerns of the Respondent, and not enough or none to the issue of view obstruction.

22. On any reading of the First or Second Judgments, the Acting Commissioner has considered both the obstruction of view concerns of the Applicants, and the privacy concerns of the Respondent. He went on a Court view, and assessed the view obstruction for himself. He examined video evidence. View obstruction and privacy issues are both relevant matters in the Court’s consideration under s 14F of the Trees Act. What weight the Acting Commissioner gave to these issues was ultimately a matter for his evaluative judgment. His judgments however demonstrate an intention to find an appropriate and just balance between the enjoyment of views of the Applicants, and the privacy concerns of the Respondent. No error of law was identified.

23. No other ground of appeal was pressed. Equally, the Respondent did not press a submission that the appeal was commenced out of time.

Conclusion

24. For the above reasons, no error of law has been made out, and consequently no ground of appeal is upheld. The appeal must therefore be dismissed.

25. Costs follow the event in s 56A appeals: Randwick City Council v Micaul Holdings P**ty L**td [2016] NSWLEC 7 at [56]; r 3.7 of the Land and Environment Court Rules (2007). Ordinarily, the Respondent would be entitled to an order for costs. That entitlement however is only to recover legal costs, and I note that neither party was represented by a lawyer in these proceedings. In the circumstances of this matter then, I am currently not inclined to make any order as to costs. If however the Respondent chooses to seek an order for legal costs, I grant him leave to file and serve written submissions (limited to 2 pages in length) as to why an order for costs should be made in his favour. If such submissions are filed, I grant leave to the Applicant to file and serve submissions (also limited to 2 pages) within 7 days of receipt of the Respondent’s submissions as to any order as to costs.

Orders

1. The appeal is dismissed.
2. The orders made by the Acting Commissioner on 26 June 2025 are confirmed.
3. No order as to costs. If however the Respondent seeks to vary this order to seek costs of the appeal, leave is granted for him to file and serve written submissions (limited to 2 pages) within 7 days of the date of this judgment. If such submissions are filed and served, the Applicant is granted leave to file and serve written submissions in reply (also limited to 2 pages) within 7 days of receipt of the Respondent’s submissions.

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