Economos v Davis

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 14F, 16
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited: Economos v Terrence [2025] NSWLEC 1078
Jones v Stephenson [2020] NSWLEC 154
Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Ziaziaris v Li [2021] NSWLEC 1373

Category: Procedural rulings

Parties: Peter Economos (Applicant 1)
Aleksandra Medeeva (Applicant 2)
Terrence Davis (Respondent)

Representation: Counsel:
P Economos (Applicant 1) (Self-represented)
A Medeeva (Applicant 2) (Self-represented)
K Davis (Agent) (Respondent)

File Number(s): 2024/367566

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: Mr Peter Economos and Ms Aleksandra Medeeva (the Applicants) of 40 Porter Avenue Mount Warrigal, submitted an amended notice of motion on 31 March 2025 seeking correction of an order where there has been a clerical mistake, accidental slip or omission as described below in [2], the rectification of an incorrect name used in the original judgment, and a request that the orders be binding on the first successor to title of the property 42 Porter Avenue Mount Warrigal.

2. The Applicants submit that the judgment made in Economos v Terrence [2025] NSWLEC 1078 on 14 February contains an error in order 2 and request that this order be amended under Uniform Civil Procedure Rules 2005 (UCPR) r 36.17 to be:

“Within 30 days of these orders, the respondent is to remove all bamboo plants forming the hedge along the eastern boundary of the Respondent’s property, and then take any action required to prevent the bamboo from regrowing. If any replacement planting is to occur along this boundary, it must only comprise species that do not exceed 4 metres in height at maturity.”

3. Alternative orders are suggested to limit the height of the bamboo to 4 metres above ground level or 2.5 metres above the existing Colorbond fence. Timing of pruning from the date of orders is also suggested along with any such further or other order as the court deems fit.

4. Written submissions, an affidavit of Mr Peter Economos made on 31 March 2025; and oral submissions during the hearing of the notice of motion 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.

5. Video submissions were also made available during the 29 April 2025 hearing which I watched at a later time. These videos showed footage and views from the rear deck of the Applicants’ dwelling. There was no evidence adduced in the videos that I had not already observed during the onsite hearing in February.

6. Pursuant to the ‘slip rule’ under r 36.17 of the UCPR, the Applicant submitted that the name of the case heard on 14 February 2025 “Terrence” be struck out and replaced with “Davis”. The request for orders to correct the Respondent’s name to Davis using the ‘slip rule’ is approved to correct this clerical error.

7. The Applicants’ notice of motion and written 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 or 3.5 metres above the Colorbond fence 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.

8. During consideration of the maximum height of the hedge (at 5 metres height above ground level) determined in order 2, in accordance with s 14F (l) and (q) of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), consideration was given to the contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated, and the nature and extent of the remaining view. 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.

9. My above findings have also been based on the step-wise approach to view sharing in Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140, where the approach to assessing view sharing was established where for example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position is relevant in this case. Sitting views are more difficult to protect than standing views. At [27], Roseeth SC concluded: ‘The expectation to retain side views and sitting views is often unrealistic’.

10. In relation to the request for orders that bind the first successor to title, in accordance with s 16 (1A) of the Trees Act, order 2 requires the Respondent to prune the bamboo hedge to a maximum of 5 metres above ground level. If the person ceases to be the owner of the land before the work is carried out, the immediate successor in title to the owner is required to carry out that work, and is bound by the order in the same way as the original trees owner. Therefore, the request that the orders be binding on the first successor to title of the property 42 Porter Avenue Mount Warrigal are deemed unnecessary.

11. The Applicants’ submission includes that that the orders specify only twice-yearly pruning after the original findings concluded that the obstruction would worsen without regular pruning and that this will be of insufficient regularity to ensure maintenance of the 5 metres maximum height. I understand the Applicants’ concern that pruning twice yearly may not be sufficient to maintain the bamboo hedge at a maximum height of 5 metres above ground level. To ensure this occurs I approve the use of the slip rule to insert the words ‘at least’ prior to the word ‘twice’ in order 2. Orders are made to this effect.

12. At the hearing before me on 29 April 2025, the Applicants represented themselves. The Respondent was represented by his daughter Ms Davis. In relation to the hearing on 29 April 2025, at which the applicant was self-represented, I refer to and repeat the remarks made by Pain J in Jones v Stephenson [2020] NSWLEC 154 at [4]:

“affidavits and written submissions mix up evidence and submission. No criticism of the [applicant] is intended by these comments. In fairness to the parties I have been flexible where possible in assessing the material before me, mindful that the distinction between the two is difficult for a layperson to apply.”

Background and procedural history

13. The Applicants have occupied the property since approximately 2011. The property contains a rear elevated deck with views generally to the north across Lake Illawarra. Views are also present from the elevated deck to the west and east, across the lake and district across side boundaries.

14. The Respondent, Mr Davis owns the property to the west of the Applicants at 42 Porter Ave Mount Warrigal. During 2024 Mr Davis planted clumping bamboo adjacent and parallel to the eastern rear boundary shared with the Applicants, to provide privacy to their property from the elevated deck of the Applicant’s dwelling. Photographs, taken around this time, submitted by the Applicants, display views of the lake to the east, and north-east. Ms Davis (Respondent’s representative) submits that maintaining the height of the bamboo hedge is necessary for the maintenance of privacy.

15. A notice of motion submitted on 28 February 2025 requested invocation of the ‘slip rule’ to amend order 2 of the 14 February 2025 judgment to correct measurement references from 5 metres to 4.5 metres, and 3.5 metres to 2.5 metres, and any other orders as deemed fit.

16. An amended notice of motion was submitted on 31 March 2025 requesting orders to remove all bamboo plants forming the hedge located along the eastern boundary of the respondent’s property, and then to take any action required to prevent the bamboo regrowing. It was also submitted that replanting should only comprise species that do not exceed 4 metres in height at maturity. Alternative orders suggested included pruning and maintenance of the bamboo hedge to a height not exceeding 4 metres above ground level (or 2.5 metres above the existing Colorbond fence). Orders were also sought by the Applicants to bind successors in title to 42 Porter Street Mount Warrigal to any orders made.

Orders

17. The orders of the Court are:

18. The application is granted in part.

19. Pursuant to the ‘slip rule’ under rule 36.17 of the Uniform Civil Procedure Rules 2005, the name of the case Economos v Terrence [2025] NSWLEC 1078 on 14 February 2025, the name “Terrence” be deleted and replaced with “Davis” throughout.

20. Pursuant to the ‘slip rule’ under rule 36.17 of the Uniform Civil Procedure Rules 2005, order 2 shall be struck out and deleted and replaced with “Prune and maintain the bamboo hedge growing inside the respondent’s eastern boundary to a height level of 5m above ground level (or 3.5m above the existing 1.5m high 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 at least twice each year.”

21. The request for orders to remove all bamboo plants forming the hedge along the eastern boundary of the Respondent’s property is dismissed.

22. The request for orders to limit the height of the bamboo to 4 metres above ground level or 2.5 metres above the existing Colorbond fence is dismissed.

23. The request for orders that bind the first successor to title are dismissed.

P Nichols

Acting Commissioner of the Court

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