Gadallah v Lennon
[2020] NSWLEC 1529
•30 October 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Gadallah v Lennon [2020] NSWLEC 1529 Hearing dates: 30 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that:
(1) The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – parts of the hedge on council-managed land – obstruction of views – whether the obstruction is severe – application refused
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Trees (Disputes Between Neighbours) Regulation 2019
Texts Cited: Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Category: Principal judgment Parties: John Gadallah (Applicant)
Michael Lennon (First Respondent)
Cynthia Lennon (Second Respondent)Representation: J Gadallah (litigant in person) (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)
File Number(s): 2020/170963 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
-
In 2014 Mr Gadallah (‘the applicant’) purchased his residential property in Lilli Pilli. He has broad views of Port Hacking to his west and southwest. In 2018 his neighbours Cynthia Lennon and Michael Lennon (‘the respondents’) planted bamboo along their north-eastern boundary. In 2020 Mr Gadallah applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the bamboo to be removed and for the height of future plantings along that boundary to be restricted.
The hearing
-
Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, to be considered along with further submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.
-
The applicant was self-represented. The respondents did not attend the hearing. When contacted, they informed the Court that they were aware the hearing was scheduled but they were busy. I heard the matter ex parte.
Framework for this decision
-
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 on an adjoining property 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 must be such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).
The bamboo forms a hedge
-
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, so as to form a hedge, and appears to be more than 2.5 metres tall.
-
Mr Gadallah submitted that part of the hedge is planted on a narrow public easement, managed by Sutherland Shire Council, between the properties. The Court cannot make orders for that part of the hedge (s 4(2)(a) of the Trees Act). The Court can only make orders for parts of the hedge that are growing on the respondents’ land.
The applicant made reasonable effort
-
I accept Mr Gadallah’s submission that he has asked the Lennons to prune the hedge and they have refused. He has made reasonable effort.
The hedge does not severely obstruct views from the applicant’s dwelling
-
Mr Gadallah included photos with his application. Of even more assistance to the Court were the videos he provided during the hearing, being material that he was invited to send to the Court in the week before the hearing. They show his extensive views. Even from his lower floor, the bamboo does not severely obstruct those views. A copy of a plan included in Mr Gadallah’s application shows the bamboo is some 14 metres from his rear-facing verandah. The bamboo is downslope from his dwelling.
-
The section of the hedge behind a neighbouring property to his west partially screens a view of a handful of properties downslope from the applicant’s, but does not obstruct any water view or broad landscape view. The section of hedge directly behind Mr Gadallah’s property is only slightly taller than the boundary fence. Even from his lower floor the bamboo only obscures parts of the respondents’ dwelling, and does not obstruct any view of the water, the landscape or sky.
-
The bamboo does not currently impact Mr Gadallah’s views. The Court’s jurisdiction is limited to hedges that severely obstruct the applicant’s view, so I cannot make orders in this matter.
-
Mr Gadallah submitted that the hedge was taller before he recently pruned parts of it. Photos in his application show the hedge before he pruned it, and I find the bamboo’s impact on his views was not significantly different then to the current situation I have described above.
-
Mr Gadallah is not wrong to be concerned of future impacts to his views. Bamboo grows quickly and, depending on its species, can grow to a significant height. The Court has heard many matters involving bamboo hedges, some of which have resulted in orders for it to be pruned or removed. Should circumstances change such that the bamboo does severely obstruct his view, and should he be unable to resolve the issue with his neighbours, he can make a new application to the Court.
Orders
-
For the reasons given above, the Court orders:
The application is refused.
……………………………….
D Galwey
Acting Commissioner of the Court
**********
Decision last updated: 03 November 2020
0
0
2