Disputes in the Land and Environment Court in 2019

The Land and Environment Court has a wide-ranging jurisdiction to deal with a variety of concerns raised by parties – and 2019 was no exception.

Errant golf balls – in Anderson v Tamworth Regional Council the Court considered the impact of a proposed manufactured home estate on an adjacent golf course. Relevantly, the Council contended that an issue in the dispute was “the relationship between the proposed dwellings that abut the fairway 18 and the risk of errant golf balls… if residents decide to wander…“. The Court did not agree with the Council and the development was ultimately approved.

Vigorous bamboo – in Reilly v Costello Ms Reily brought an action against Ms Costello for the trimming and removal of bamboo on Ms Costello’s property which was 9m high in places. Ms Costello pressed that the bamboo had grown vigorously despite efforts to remove it. Given that “there [was] no evidence that the bamboo was planted so as to form a hedge“, and given that it was “at least possible that the bamboo in Ms Costello’s garden began as a single plant“, the Court was unable to make any orders regarding the trimming and removal of the 9m high bamboo shoots.

3am conversations – in Nelmeer Hoteliers Pty Ltd v Burwood Council evidence was presented in relation to acoustic impacts relating to a carpark adjacent to existing residential apartments. The Court heard concerns in relation to “the sound of a loud conversation”, a “door slamming” and “a very loud person [causing] noise disturbance“. The Court was unconvinced and found there was “no attended measurement that demonstrates an impact caused by a discussion between patrons in the car park in the early hours of the morning (such as at the current closing time of 3am).

Your house is your castle (with approval) – in Sutherland Shire Council v Perdikaris the Court reminded us that, notwithstanding a person’s home being their castle, planning approval is required for new additions:

The English judge and jurist Sir Edward Coke famously declared in 1604 “that the house of every one is to him as his castle and fortress” … A more modern reformulation of this aphorism is to the effect that a person’s home is their castle. But be that as it may, in 2019 the Environmental Planning and Assessment Act 1979… places restraints on the number of towers, keeps, and barbicans that are permitted to comprise that castle. And once complete, if new stables, turrets, or even a moat is sought to be added to the existing structure, these will generally require some form of planning approval from an appropriate consent authority. So it was with the new very large garage (or shed) constructed by the respondents at their residential premises…

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.