Holpert v Sarsfield

Land and Environment Court

New South Wales

Medium Neutral Citation:	Holpert & anor v Sarsfield & anor [2016] NSWLEC 1031
Hearing dates:	25 January 2016
Date of orders:	04 February 2016
Decision date:	04 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; planter box; height above ground level; dwelling under construction - windows not yet installed; no severe obstruction
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2014
Cases Cited:	Blau v Levi [2010] NSWLEC 1371 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Category:	Principal judgment
Parties:	Mr O Holpert and Ms C Koellner (Applicants) Mr A Sarsfield and Ms G Smart (Respondents)
Representation:	Applicants: Mr O Holpert (Litigant in person) Respondents: Mr S Latham (Solicitor)   Solicitors: Respondents: Stuart Latham Solicitors
File Number(s):	21056 of 2015

Judgment

1. COMMISSIONER: The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a bamboo hedge growing in a planter box on the respondents’ property. The orders are sought on the basis that the bamboo severely obstructs sunlight to windows of their dwelling and views from their dwelling.

2. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied before the Court’s powers to make orders under s 14D are engaged.

3. The first of these tests is to determine whether the trees, the subject of the application, are trees to which the Part applies. Section 14A(1) states:

(1)   This Part applies only to groups of 2 or more trees that:

(a)   are planted (whether in the ground or otherwise) so as to form a hedge, and

(b)   rise to a height of at least 2.5 metres (above existing ground level).

4. Clause 4 Trees (Disputes Between Neighbours) Regulation 2014 states that bamboo is a tree for the purpose of the Act.

5. The bamboo is growing in a planter box built along the southern edge of a deck constructed above the respondents’ garage. The deck is connected to a covered area of private open space at the front of their dwelling. At the time of the hearing, the height of the recently pruned bamboo when measured from the surface of the potting mix in the planter box was approximately 1.9m and about 2.5m from the surface of the deck inclusive of the planter. The wall of the garage, when measured from ground level on the respondents’ property is approximately 2.8m high.

6. The respondents value the bamboo as it screens the unfinished second storey extension of the applicants’ dwelling and provides a degree of privacy for the respondents’ front deck and front bedrooms.

7. Although the plants are less than 2.5m, s 14A(1)(b) specifies ‘above existing ground level’. Therefore while this may or may not have been intended in the drafting of the Act, and although it may be more logical to specify the height…