Britten v Smith

[2024] NSWLEC 1458

Land and Environment Court

New South Wales

Medium Neutral Citation:

Britten v Smith [2024] NSWLEC 1458

Hearing dates:

28 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – Review of the Trees Act – trees severely obstructing sunlight before applicants’ occupation – other causes of sunlight obstruction

Legislation Cited:

Interpretation Act 1987

Trees (Disputes Between Neighbours) Act 2006,

Pt 2A, ss 14A, 14B, 14E, 14F

Trees (Disputes between Neighbours) Regulation 2019, s 4

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Byrne v Davies [2024] NSWLEC 1295

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Lee v Stapleton [2022] NSWLEC 1430

Texts Cited:

NSW Justice & Attorney General’s Department ‘Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)’ (November 2009)

Category:

Principal judgment

Parties:

Jonathan Britten (First Applicant)
Zoye Britten (Second Applicant)
Don Smith (First Respondent)
Wendy Smith (Second Respondent)
Max Osbourne (Third Respondent)

Representation:

J Britten (Self represented) (First Applicant)
Z Britten (Self represented) (Second Applicant)
D Smith (Self represented) (First Respondent)
W Smith (Self represented) (Second Respondent)
M Osbourne (Self represented) (Third Respondent)

File Number(s):

2024/35110

Publication restriction:

Nil

Judgment

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

Background

1. Jonathan and Zoye Britten, the applicants, share a boundary with the respondents, Don Smith, Wendy Smith, and Max Osbourne, between their properties in Kiama. The parties’ properties face different streets, such that the applicants’ rear boundary is the front portion of the respondents’ side boundary. The applicants’ land is located south of the respondents’ property.

2. The Brittens’ noted that no vegetation was growing along the common boundary upon their initial occupation in 2011. In 2018 or 2019, however, the respondents planted Bambusa textilis var. Gracilis (Slender Weavers Bamboo) (the bamboo) along their southern boundary, which rapidly established into a dense tall hedge.

3. The respondents, who represented a Strata body, contended the hedge planting was a condition of a development application (DA) approval from Kiama Municipal Council (Council) and that their DA’s Landscape Plan specified Slender Weavers Bamboo. The respondents appreciated the aesthetics of the bamboo and the privacy it provided. They preferred no intervention with the bamboo but were prepared to accommodate pruning to a height of about 6 metres (m).

4. The applicants said the bamboo had reached a height of about 9 m and claimed it severely obstructed sunlight to windows of their dwelling. They nominated two windows (W1 and W2) and estimated, at question 4 of the Tree Dispute Claim details (Exhibit B), that 8 hours of sunlight to W1 and W2 was lost as a result of the bamboo hedge.

5. Further, Mr and Mrs Britten contended that “the mass/weight of the bamboo hedge causes it to rest on our roof line and in our gutter” and that it constantly lost leaves into…