Atkins v Fera

[2020] NSWLEC 1615

Land and Environment Court

New South Wales

Medium Neutral Citation:

Atkins v Fera [2020] NSWLEC 1615

Hearing dates:

30 November 2020

Date of orders:

30 November 2020

Decision date:

30 November 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of sunlight – whether the obstruction is severe – lack of evidence

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Trees (Disputes Between Neighbours) Regulation 2019

Category:

Principal judgment

Parties:

Robert Atkins (Applicant)
Bianca Dominique Fera (First Respondent)
Matthew Richard Graham (Second Respondent)

Representation:

R Atkins (Litigant in Person) (Applicant)
B Fera (Litigant in Person) (First Respondent)
M Graham (Litigant in Person) (Second Respondent)

File Number(s):

2020/246179

Publication restriction:

No

Judgment

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

Background to the application

1. Robert Atkins (‘the applicant’) has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for two neighbouring bamboo hedges to be removed or, failing that, for the bamboo to be maintained at a height of 2.5 metres.

2. The bamboo grows on the property belonging to Bianca Fera and Matthew Graham (‘the respondents’). It was already established when they purchased their property in 2019.

3. Mr Atkins wants the bamboo removed for two main reasons: it obstructs sunlight to his dwelling and it damages his property. His application is only made under Pt 2A of the Trees Act, where orders can address trees in hedges obstructing sunlight or views. To address any issues relating to property damage or injury, Mr Atkins would need to file a separate Pt 2 application.

Framework for this decision

4. For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

5. A common misunderstanding, seemingly held by the applicant here, is that the reference to a height of 2.5 metres at s 14A(1) somehow indicates the maximum height to which a hedge is permitted to grow in New South Wales. That is not the case – there is no maximum hedge height legislated across New South Wales. Rather, Pt 2A of the Trees Act only applies to hedges that rise to a height of at least 2.5 metres.

The bamboo forms two hedges

6. The application concerns bamboo growing on the…