Jayawardena v Salvia

[2013] NSWLEC 1243

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jayawardena v Salvia & anor [2013] NSWLEC 1243

Hearing dates:

4 December 2013

Decision date:

24 December 2013

Jurisdiction:

Class 2

Before:

Fakes C
Galwey AC

Decision:

The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of sunlight; damage; application dismissed.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007

Cases Cited:

Tooth v McCombie [2011] NSWLEC 1004
Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

APPLICANT
Joseph Jayawardena

RESPONDENTS
Robert Salvia (First Respondent)
Frances Salvia (Second Respondent)

Representation:

APPLICANT
Alexander Maroulis

RESPONDENTS
Richard Kouchoo
APPLICANT
Alexander Maroulis Lawyers

RESPONDENTS
Trevor Hall
Hall Partners

File Number(s):

20676 of 2013

Judgment

Background

1. Mr and Mrs Salvia ('the respondents') are the owners of a residential property in North Ryde. Approximately four years ago they planted a row of bamboo along one section of their rear boundary to gain and maintain privacy from the double-storey dwelling to their southwest.

1. Mr Jayawardena ('the applicant') and his family own and live in the double-storey dwelling to the respondents' southwest. The bamboo, he says, causes them two problems. Firstly, they are concerned that the bamboo bends in the wind, hitting their roof guttering, and that it will therefore damage their property. Secondly, they say that the bamboo obstructs sunlight to windows of their dwelling. On 13 November of this year they filed an (amended) application under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for pruning of the bamboo due to the risk of damage (under Part 2 of the Act) and the sunlight obstruction (Part 2A of the Act).

1. The respondents pruned the bamboo on 1 December, a few days before this hearing. While they are willing to maintain it at its current height, they do not want the bamboo cut to a lower height, as they say it affords them privacy.

1. Before orders can be made under Part 2 of the Act, we must be satisfied at s 10(2)(a) that the trees are likely to cause damage in the near future (as the applicants do not claim past or present damage, nor risk of injury). Again, this is where there is, or at least has been, dispute between the parties.

1. There is no dispute between the parties that the bamboo forms a hedge or that it is more than 2.5 metres tall. Bamboo is a tree according to the Act, as it is prescribed by the Trees (Disputes Between Neighbours) Regulation 2007. Therefore, regarding the application under part 2A of the Act, the jurisdictional tests at s 14A(1) are satisfied. For the Court to make orders under Part 2A with regard to sunlight obstruction, the jurisdictional tests at ss 14E(2)(a)(i) and 14E(2)(b) must also be satisfied, and this is where the parties are in dispute. Therefore we must determine if the bamboo is causing a severe obstruction of sunlight to windows and, if so, whether it is severe enough to warrant intervention when…