Couple takes neighbours to court over hedge blocking their sunlight

A NSW couple has taken their neighbours to court over a hedge they claimed blocked sunlight and sent debris flying on to their property.

Paul and Patricia Bogan, who own a property in Boat Harbour, near Port Stephens, built a dwelling on their land five years ago.

The house has a verandah on the upper level that allows oversight into their neighbours’ property.

To establish and maintain privacy and to enhance aesthetics in their garden, the Bogans’ neighbours — Jose and Melissa Serrao — planted a hedge of bamboo trees along their side of the common boundary.

Once the hedge was established, the Bogans claimed it caused problems, including damaging the common boundary metal panel fence during windy periods.

The Bogans also claimed dry leaves and leaf sheaths falling and blowing onto their shed roof and gutters were causing an unreasonable maintenance burden and fire risk.

They also claimed the bamboo hedge blocked sunlight to a window of a shed on their property.

Before making an application to the Land and Environment Court, the Bogans requested the Serraos prune and maintain the bamboo at the common fence height or remove it completely, but the neighbours refused.

The Bogans applied to have the bamboo removed and replaced with suitable plants if required, to replace the metal panel fence and to have the Serraos pay their legal fees.

In a decision handed down earlier this year, Acting Commissioner of the Court John Douglas said the claim made regarding sunlight in the shed was dismissed because the structure was not approved by council for habitation as a dwelling.

Regarding the fence, Douglas said it was over 25 years old and was exhibiting rust at the base of two posts and along the top rails.

The Bogans had claimed the bamboo had exacerbated the rust, but Douglas found the damaged posts were distant from the bamboo and posts in proximity “appeared relatively undamaged”.

“I was satisfied that the rust was not impacted by the bamboo, but the rusting was hastened by constant exposure to abrasive salt laden winds inherent in the coastal location,” he said.

However, while he found the bamboo had not damaged the fence yet, he said it was likely to damage the fence in the near future during periods of strong winds where the bamboo mass would rock it.

While there were no bamboo roots and stems damaging the fence base, they were close to the fence which meant stem incursion into the Bogans’ land was also likely, Douglas said.

While part of their claim was dismissed, Douglas ordered the bamboo that was closest to the fence be removed and a structure be erected behind the bamboo to prevent it impacting the fence.

He also ordered the bamboo be pruned annually, but “not to an extent that may compromise the privacy it affords the (Serraos).

“The (Serraos) emphasised the bamboos’ contribution to their privacy, which in site context, is a reasonable concern,” he said.

Douglas also ordered for the fence to be repaired, not replaced, with the cost to be equally split between the neighbours.

“I was not persuaded by the (Bogans’) claim that the bamboo had exacerbated rusting of the fence but was instead satisfied that age-related wear, tear, and rusting were the causes of the fence’s deterioration,” he said.

“Though the fence was over 25 years old, it was, nonetheless, still fit for purpose and in serviceable condition.”

The Bogans’ claim regarding bamboo debris falling and blowing onto their shed roof and backyard, and the related maintenance burden, was also dismissed.

“The shed was over 32 years old, and the gutter guard, claimed to be rusted by bamboo leaves, was 13 years old,” Douglas said.

“As with the fence, the Court expects normal wear and tear to impact all structures, and considering the ever-present abrasive salt laden air, there was no evidence of damage to the shed roof or gutters, or the soil surface, that may be attributed to the bamboo.

“Even if the bamboo leaves had caused roof damage, such damage could be avoided with regular maintenance

“I was not satisfied that debris from the bamboo, nor the hedge itself, presented an unacceptable fire risk.”

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