Arnold v Johnson

[2016] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation:	Arnold v Johnson [2016] NSWLEC 1594
Hearing dates:	12 December 2016
Date of orders:	12 December 2016
Decision date:	12 December 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; severity of obstruction; trees pruned
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Deville & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Category:	Principal judgment
Parties:	Frank Arnold (Applicant) Michelle Johnson (Respondent)
Representation:	Applicant: Mr F Arnold (Litigant in person) Respondent: Ms M Johnson (Litigant in person)
File Number(s):	260696 of 2016

Judgment

1. COMMISSIONER: The applicant owns a property in Avalon. He has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and subsequent maintenance of clumps of bamboo growing on the respondent’s property to a height of 3 metres. The orders are sought on the basis that the trees severely obstruct sunlight to three windows of the applicant’s dwelling.

2. The matter was initially listed for a consent orders hearing, by telephone, in late October 2016. During this hearing I was informed that while some of the bamboo had been trimmed, some clumps had not. The applicant remained concerned about the impact of the plants on his sunlight. As a consequence of this remaining issue, the matter was relisted for an on-site hearing on 12 December 2016.

3. Section 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant’s land, however, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.

4. The Part applies to groups of two or more trees which are planted to form a hedge and which are at least 2.5 m tall (above natural ground level).

5. There are four clumps of bamboo identified in the diagram in the application claim form. It appears that only the clump identified as T4, the eastern-most clump, is the subject of this application as only this clump could have any impact on the three nominated windows. The remaining clumps are towards the rear of the applicant’s dwelling.

6. There was no objection to the clump of bamboo in contention being considered as vegetation to which the Part applies.

7. The key test in applications made under Part 2A is found in s 14E(2) which 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.

8. The use of the word ‘are’ in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.

9. There are three nominated windows; all are south-east facing windows at the front of the dwelling. W1 is the living room window, W2 is a study window and W3, the window closest to T4, is a bedroom window.

10. The applicant contends that at the time the application was made, the bamboo was 10-12m tall and blocked all winter sunlight into the three windows. The applicant states that in summer, the bamboo prevents sunlight entering W3 after the first hour after sunrise.

11. A photograph in the application claim form shows the bamboo in question to be at least as tall as several palms growing on the respondent’s property; the estimate of 10-12m appears reasonable. However, there is nothing in the application claim form, such as shadow diagrams or timed and dated photographs, which prove the applicant’s contentions that the bamboo severely obstructs sunlight to the nominated windows.

12. In October 2016 and prior to the consent orders hearing, the respondent had the bamboo pruned to approximately the height of the eaves of her dwelling – a substantial reduction in height.

13. At the on-site hearing it was clear that while the bamboo has grown since October, there is no evidence that the bamboo at its present height severely obstructs sunlight to any window.

14. Given the current height of the bamboo and the lack of probative evidence of severe obstruction at the time the application was made, I cannot be satisfied that the bamboo in question is severely obstructing sunlight to any window and thus s 14E(2)(a)(i) is not met.

15. As a consequence, the Court has no jurisdiction to further consider the matter. However, as discussed in Deville & anor v Frith & anor [2014] NSWLEC 1002, should the circumstances change a fresh application can be made.

16. The Orders of the Court are:

1. The application is dismissed.

_____________________

Judy Fakes

Acting Commissioner of the Court

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Decision last updated: 13 December 2016