Holcroft v Rayner

[2019] NSWLEC 1389

Land and Environment Court

New South Wales

Medium Neutral Citation:	Holcroft v Rayner [2019] NSWLEC 1389
Hearing dates:	16 August 2019
Date of orders:	16 August 2019
Decision date:	16 August 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is granted. (2) Twice per year during March and September, beginning September 2019, the respondents are to prune their bamboo hedge so that no part of the bamboo is more than 2 metres above ground level, measured from the base of each clump.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – obstruction of sunlight and views – requirement of hedge to be at least 2.5 metres tall – pruning of hedge prior to hearing – whether the trees are severely obstructing a view – orders for pruning of bamboo
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Steber v Job [2019] NSWLEC 1308
Category:	Principal judgment
Parties:	George Holcroft (First Applicant) Silvia Holcroft (Second Applicant) David Rayner (First Respondent) Anita Rayner (Second Respondent)
Representation:	G Holcroft and S Holcroft, litigants in person (Applicants) D Rayner, litigant in person (Respondents)
File Number(s):	2019/150460
Publication restriction:	No

Judgment

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

Background

1. George and Silvia Holcroft (‘the applicants’) have applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for a neighbouring hedge to be maintained so as to restore and retain their access to views and sunlight.

2. David and Anita Rayner (‘the respondents’) planted a bamboo hedge on their property several years ago. Approximately 23 clumps of bamboo are planted in a straight line in a bed along the common boundary they share with the Holcrofts. The hedge extends from near the front of the Holcrofts’ dwelling to the Rayners’ carport, beyond the rear corner of the Holcrofts’ dwelling. The hedge is less than two metres from the Holcrofts’ dwelling.

3. Mr Rayner pruned the hedge recently, after the Holcrofts made their application to the Court. The front six clumps are now less than a metre tall; the remainder of the hedge is approximately two metres tall.

4. I observed the situation at this morning’s onsite hearing.

Submissions

5. The Holcrofts submitted that, until it was recently pruned, the hedge obstructed their outlook from their computer room window and rear sunroom window. They submitted that the hedge obstructed sunlight to these windows and their bathroom window.

6. They stated that the Rayners have only ever pruned the bamboo after receiving a letter from the Holcrofts’ solicitor or after receiving their application to the Court. They have tried pruning overhanging parts of the bamboo but were stopped by Mr Rayner.

7. They said the bamboo reached the height of their roof eaves, obstructed their narrow side path and contacted their eaves and gutters. Debris from the bamboo stains their pool. These are not jurisdictional matters under Part 2A of the Trees Act, but might be considered if I find the obstruction of sunlight or views is severe.

8. Mr Rayner pointed out that he has pruned the trees. He does not want the Holcrofts using a chainsaw to cut the bamboo. He said debris from other trees, including a large gum tree, would fall into their pool. The section of hedge between the dwellings provides visual screening, preventing overlooking. Mr Rayner explained that the Holcrofts would not allow him to access their property to prune the bamboo or to clean up debris.

Findings

9. The bamboo has been pruned. At the time of this morning’s hearing it was no more than two metres tall and did not significantly obstruct sunlight or views. The computer room and sun room windows, facing southwest, received indirect light. The outlook to the street and sky was available.

10. I found recently in Steber v Job [2019] NSWLEC 1308 that the Court must be satisfied that the jurisdictional tests of the Trees Act regarding a hedge’s minimum height, and the severity of its view or sunlight obstruction, must have been reached but do not need to apply on the day of the hearing. The onus lies with the applicants to demonstrate this. The photo in their application shows the outlook from their computer room is obstructed entirely by the bamboo hedge. It has clearly reached more than 2.5 metres in height and it severely obstructs their view. Considering the difficulty they have experienced in getting the hedge pruned, this state of affairs is likely to continue. Therefore, I am satisfied that the trees rise to at least 2.5 metres in height and that they severely obstruct the Holcrofts’ view. The outlook from the computer room is of the street and sky, but this is the only view available from this side of their dwelling, and is a pleasant outlook. When taller, the bamboo forms a dense screen, close to their dwelling, which removes this outlook.

11. Have considered other relevant matters at s 14F of the Trees Act, I find there are no matters that outweigh the Holcrofts’ interests in having the bamboo pruned. The bamboo grows quickly and will tolerate regular pruning. Maintaining the bamboo at or around its current height would provide some screening between the properties while allowing an outlook from the Holcrofts’ windows.

Orders

12. As a result of the foregoing, the orders of the Court are:

1. The application is granted.

2. Twice per year during March and September, beginning September 2019, the respondents are to prune their bamboo hedge so that no part of the bamboo is more than 2 metres above ground level, measured from the base of each clump.

……………………………….

D Galwey

Acting Commissioner of the Court

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