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 balanced against any reasons not to interfere, such as privacy.

1. The severity of sunlight obstruction must be assessed based on the state of the hedge at the time of the hearing, not at the time the application was made. This is consistent with the findings of the Court in Tooth v McCombie [2011] NSWLEC 1004. Unlike views, which are relatively immobile, the sun is in different positions in the sky through the day and throughout the year. These differing positions of the sun should, of course, be considered, but any obstruction the hedge may cause should be considered using the hedge's state at the time of the hearing.

1. Employees of the Council of the City of Ryde provided affidavits, mainly regarding the species of bamboo and its status (it is not classified as a noxious weed).

Application under Part 2 - risk of damage

1. During the onsite hearing the applicant showed us a video on his mobile phone of the bamboo bending in the wind. As it swayed and flexed in the wind, the bamboo could be seen touching the applicant's roof guttering. However the applicant says that no damage has yet occurred. His concerns focus on the risk of damage in future. The video was taken several days before the bamboo was pruned when, according to the application, it was over 7 metres tall. At the hearing we measured the bamboo with a height pole - it was 6.2 metres tall.

1. Based on our viewing of the bamboo during the hearing, we are not satisfied that there is any risk of the bamboo damaging the applicant's property in the near future. We consider 'the near future' to represent a period of around 12 months, as established by the Commissioners in Yang v Scerri [2007] NSWLEC 592 and applied consistently by the Court since then. We cannot see that, within this timeframe, the bamboo is likely to reach such a size that it will be able to impact on the applicant's guttering with enough force that it would cause damage. Furthermore, during his submissions Mr Maroulis, for the applicant, conceded that, now that the bamboo has been pruned, it can't be argued that damage is likely in the next 12 months. As a consequence of the foregoing, according to s 10(2)(a) we cannot make orders with regard to damage and this part of the application is dismissed.

Application under Part 2A - obstruction of sunlight

1. The applicant says that the bamboo obstructs sunlight to five windows, to which we were taken during the hearing. Windows W1-W3 are upstairs; windows W4 and W5 are downstairs.

1. If we find that there is a severe obstruction, we must also consider the impact that pruning or other orders would have on the respondents' privacy. Therefore privacy issues were observed and commented on during the onsite view, which began at the respondents' property. From within their garden we observed their outdoor table as well as the applicant's windows. We then went to the applicant's dwelling. The applicant gave oral evidence regarding the current extent of the sunlight obstruction, as the percentages provided in the form Tree Dispute Claim Details (High Hedges) were estimated prior to the recent pruning. Below we use the percentages estimated by the applicant during the hearing.

1. W1 is a bedroom window. The applicant claims the obstruction of sunlight is approximately 70% of the window at 9:00 a.m. (as opposed to 90% prior to pruning) but says that later in the day there is little obstruction.

1. From W1 we noted, and the respondents agreed, that the rear wall of the respondents' dwelling can be seen but the outdoor table in their garden cannot.

1. W2 is the window in the ensuite to the main bedroom. The applicant says there is now a 70% obstruction of sunlight here at 9:00 a.m. and a 70% loss at midday.

1. W3 is the window in the main bedroom. The applicant says there is now a 40% obstruction of sunlight here at 9:00 a.m. and a 60% loss at midday.

1. Downstairs, W4 is the window to the laundry. Here the applicant claims there is a 90% obstruction of sunlight at 9:00 a.m. and a 70% loss at midday.

1. W5 is the window in the garage, where the applicant says there is a 20% obstruction of sunlight at 9:00 a.m. and a 70% loss at midday.

1. During submissions the applicant emphasised that, while the situation has improved since the bamboo was pruned, they are concerned about further sunlight obstruction in future and want orders for ongoing management.

Findings regarding sunlight

1. The onsite hearing took place in the early afternoon, allowing us to gain a reasonable impression of the degree of sunlight obstruction. We do not find that there is a severe obstruction of sunlight to any of the upstairs windows W1-W3. The top of the bamboo is almost level with the top of the windows and is approximately 1.9 metres horizontally from the windows. The bamboo does not extend all the way eastward past W3. While the sun is low in the morning and to the east, sunlight to this window is unlikely to be significantly blocked by the hedge. It is also unlikely to be significantly blocked when the sun is higher in the sky later in the day.

1. The current situation regarding W2 is that any obstruction of sunlight is likely to be limited to the early morning. We are not satisfied that this as a severe obstruction.

1. Similarly, obstruction of sunlight to W1 is likely to be limited to the early morning and we are not satisfied that this as a severe obstruction.

1. The obstruction of sunlight to the downstairs windows is more significant than upstairs, however the two windows here are to the applicant's laundry (W4) and their garage (W5). These are utility rooms, not living areas. Additionally, the respondents' garage appears to contribute to the obstruction. Considering these aspects, even were we to find a severe obstruction of sunlight to these windows, we would not be minded to make any orders. Any possible gain to the applicant is likely to be outweighed by the respondents' interests in maintaining the hedge as it is.

1. We did not note any significant issues regarding privacy from any of the windows, but as we do not find that there is a severe obstruction of sunlight that warrants orders, there is no need for us to consider this further.

1. Considering these findings, this part of the application is also dismissed.

Orders

1. As a consequence of the foregoing, the orders of the Court are:

(1) The application is dismissed in its entirety.

____________________________

J Fakes

Commissioner of the Court

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 January 2014