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 respondents’ property along the common boundary shared with the applicant. Bamboo is a grass, but according to the Trees (Disputes Between Neighbours) Regulation 2019, it is a tree for the purposes of the Trees Act. The bamboo is planted in a linear fashion along the boundary, forming a screen. It is planted to form a hedge, and it is more than 2.5 metres tall.

7. There are two distinct hedges of bamboo. Toward the eastern end of the boundary is a hedge some five metres long, that Mr Atkins says was planted in 2019. Bamboo in this hedge (the ‘2019 hedge’) is approximately 3 metres tall. Toward the western end of the boundary is a row of bamboo planted in 2011 (the ‘2011 hedge’) that is 8 metres or more in height. The two hedges are separated by several metres.

The applicant made reasonable effort

8. Mr Atkins says he made two “friendly approaches” to the respondents. He has been unable to persuade them to prune or remove the bamboo. The relationship between these neighbours seems to have soured somewhat. Considering the circumstances, I am satisfied that Mr Atkins made reasonable effort.

Does the bamboo severely obstruct sunlight to the applicant’s windows?

9. The bamboo is approximately 8 metres to the north of the Atkins’ dwelling. The Atkins’ north-facing windows are in the lounge and dining room, at the dwelling’s eastern end, and in the bathroom and laundry at the western end.

10. I iterate here what I explained to Mr Atkins at the outset of the hearing: before making any orders, the Court must be satisfied that the bamboo is causing a severe obstruction of, in this case, sunlight to the applicant’s windows.

11. The Trees Act has been framed in such a way to facilitate the quick, cheap and fair determination of disputes such as this. It enables parties to be self-represented, as they are here. Commissioners bring relevant expertise to hearings, minimising the need for expert reports. In proceedings involving sunlight obstruction, parties often file professionally prepared shadow diagrams to demonstrate the extent of the obstruction. However, where the self-represented litigant can demonstrate the obstruction severity via other means, such diagrams might be unnecessary.

12. Mr Atkins has filed several photographs with his application. They include photographs taken from near his dwelling, looking northward to the bamboo. There are photographs from within the dwelling of shuttered windows, and of the floor near the lounge windows. Mr Atkins say these latter photographs show that the bamboo shades the windows. The photographs are not date stamped. I cannot tell if they were taken when the sun was shining. I cannot determine what causes any shadowing. They do not assist the Court. Photographs filed by the respondents were taken in October, so do not show mid-winter shadowing, the main cause of complaint for Mr Atkins. Therefore, I can rely only on Mr Atkin’s submissions and my own observations.

13. Mr Atkins submitted that the 2019 hedge will obstruct sunlight once it grows. When asked if it already shades his windows he said “yes”, but considering the height of this hedge, I find any such obstruction would be minor.

14. Mr Atkins submitted that the 2011 hedge shades his lounge, bathroom and laundry windows from 11:00 am until late afternoon. I accept that there might be some shading of these windows mid-winter, considering the bamboo’s height, but there is no evidence to demonstrate that the obstruction is severe; that is, that the bamboo shades most of the window area for most of the day, as there is nothing else contributing to mid-winter obstruction here. Any obstruction caused by the bamboo would be restricted to several weeks either side of the winter solstice.

15. I find it surprising that Mr Atkins has gone to the trouble of taking photographs of a problem that has seriously irked him for some time, but has included no photographs of the external north-facing wall and windows showing the extent of sunlight obstruction throughout the day in mid-winter. He filed his application with the Court in early August, some seven weeks after the winter solstice, so had the perfect opportunity to take such photographs.

16. On the evidence before me, I cannot be satisfied that the bamboo severely obstructs sunlight to the Atkins’ windows, so I cannot make any orders.

Orders

17. As a result of the foregoing, the Court orders:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 04 December 2020