Land and Environment Court New South Wales

• Medium Neutral Citation: Davies v Christie [2011] NSWLEC 1324
• Hearing dates: 14 November 2011
• Decision date: 14 November 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; pruning of bamboo hedge ordered

• Catchwords: TREES [NEIGHBOURS] hedge; obstruction of sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Regulation 2007
• Category: Principal judgment
• Parties: F & P Davies (Applicants); P & D Christie (Respondents)
• Representation: Applicants: F & P Davies (Litigants in person); Respondents: P & D Christie (Litigants in person)
• File Number(s): 20621 of 2011

Judgment

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

1 COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Newport against the owners of trees growing on an adjoining property.

2 The trees comprise multiple stems of two species of bamboo. Clause 4 of the Trees (Disputes Between Neighbours) Regulation 2007 prescribes bamboo as a tree for the purpose of the Act.

3 The applicants are seeking orders for the bamboo to be cut and maintained at a height of 3m on the basis that it severely obstructs sunlight to their dwelling.

4 The bamboo is growing along part of the rear or southern boundary of the respondents' property and is on average about 8.5m high. To the east of the bamboo is a single Brush Box, measured by the respondents' surveyor at 12.5m high. The Brush Box is not subject to the application.

5 The respondents stated that they planted the bamboo as a privacy screen to minimise the overlooking of their backyard by an elevated dwelling some distance to the south (across the road from the applicants' property).

6 The applicants said that they purchased their property to take advantage of the northerly aspect at the rear of their dwelling. They contend that before the bamboo was planted they received morning sun in winter into their dining room and kitchen and it was sufficient to enable them to get by with a small heater. The applicants stated that they receive almost no winter sun from sunrise until after10.00 am.

7 The nominated windows are along the north-eastern side of the applicants' dwelling and include the dining room, kitchen and laundry.

8 Both parties provided professionally prepared shadow diagrams. The applicants' diagrams only show the shadows cast at 9.00 am on 21 June. These diagrams give three scenarios (drawings 01, 02, 03); all show the hedge in two sections with the eastern portion notated as "outline of very dense bush. Height 12.000." This portion presumably includes some of the foliage of the Brush Box as the depiction of it on the plan is far more restricted than its actual size.

9 Drawing 01 shows shadows cast at 9.00 am with the western portion at 6m and the eastern portion at 12m. Drawing 02 shows all vegetation at 6m and Drawing 03 shows all vegetation at 3m. Drawings 01 and 02 show shading of the nominated windows at 9.00am. Drawing 03 shows only part of the dining room windows shaded at 9.00am.

10 The respondents' shadow diagrams are more conventional in that they show the shadows cast at hourly intervals from 9.00am until 3.00pm on 21 June. The respondents' diagrams also distinguish the shadows cast by the bamboo and those cast by the Brush Box. These drawings also give three scenarios; the current height (8.5m for the bamboo and 12m for the tree), option 1 - the bamboo cut to 4.2m and the tree to 10m, and option 2 - the bamboo cut to 3m and the tree to 10m.

11 At 9.00 am the bamboo completely obstructs the kitchen and living room windows with the tree creating dense but dappled shade. At 10.00 am the bamboo obstructs at least 60% or more of the kitchen and fining room windows. From 11.00am there is no impact of the bamboo or the tree. Pruning the bamboo to 4.2m shows sun to the living room windows with the tree shading the kitchen windows.

12 In determining applications made under Part 2A, the Court must consider a number of jurisdictional tests. Firstly, the bamboo satisfies s 14A in that there are two or more 'trees' planted so as to form a hedge, that rise to a height of at least 2.5m and are on appropriately zoned land.

13 Of importance is s 14E(2), this states:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

14 In this matter, the issue is early morning sun in winter. In putting the applicants' case at its highest, I am satisfied that the shadow diagrams submitted by the respondents do show that the bamboo severely obstructs sunlight to the dining room and kitchen until after 10.00 am. However, those shadow diagrams also persuade me that pruning to a height of 3m is not justified and that a height of 4.2m provides adequate solar access.

15 In considering the balancing required in s 14E(2)(b), I consider that the respondents' privacy is unlikely to be unreasonably compromised by reducing the bamboo to 4.2m. As the Brush Box is not subject to the application, I am assuming it will remain untouched and it should assist in maintaining some privacy.

16 I note the applicants have an electronically operated pergola and wide eaves that adjoin the dining room and kitchen so the critical time for the morning sun is when the sun is lower in the sky in winter. Therefore I do not consider it necessary to order ongoing maintenance of the bamboo at a nominated height. One pruning event coming into winter should be sufficient and achieve a reasonable compromise in the particular circumstances of this matter.

17 Therefore the Orders of the Court are:

(1) The application to prune the bamboo is upheld in part.

(2) The respondents are to prune the bamboo to a height of 4.2m above ground level on their property between 1 st and 15 th May each year. No pruning of the Brush Box is to occur as a consequence of these orders. The pruning is to commence in 2012.

____________________

J Fakes

Commissioner of the Court

Decision last updated: 15 November 2011