Jayawardena v Salvia

[2015] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jayawardena v Salvia & anor [2015] NSWLEC 1191
Hearing dates:	26 May 2015
Decision date:	26 May 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	Trees (Disputes Between Neighbours); damage to property; hedge; bamboo; obstruction of sunlight; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Joseph Jayawardena (Applicant) Robert Salvia and Francis Salvia (Respondents)
Representation:	Joseph Jayawardena, litigant in person (Applicant) Robert Salvia and Francis Salvia, litigants in person (Respondents)
File Number(s):	20187 of 2015

Judgment

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

Background

1. The bamboo that is at the centre of this matter was also the subject of a previous matter involving the same applicant and the same respondents. The Jayawardenas say the bamboo is obstructing sunlight to their windows and is likely to damage their roof guttering. Mr Jayawardena has applied to the Land and Environment Court pursuant to both Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) seeking orders for the bamboo to be removed or, failing that, for it to be pruned to a height of 3 metres every six months.

2. The Salvias say they prune the bamboo when necessary and that the situation has not changed since the Court determined the previous matter.

Notice of Motion

3. Prior to the hearing the Salvias filed a Notice of Motion seeking orders for the application to be dismissed or, as I understand it, for it not to be heard, on the grounds that the applicants have provided no new evidence. However evidence is not restricted to that submitted in the application, and includes evidence observed during the onsite hearing. The applicants say the bamboo has grown since the previous hearing. That would be a change in the circumstances, allowing a new application to be made and heard. Therefore the Salvias’ Notice of Motion is dismissed.

Findings relevant to Part 2A

4. The bulk of the bamboo’s foliage is at the same height as it was at the time of the previous onsite hearing. Beyond this height several stalks of bamboo extend up to 3 metres higher, but they have little foliage on them and do not contribute in any significant way to sunlight obstruction.

5. The Jayawardenas took me to the same windows that we were shown at the previous hearing. The situation regarding each window remains the same as last time, and my findings regarding the extent of the obstruction are consistent with those findings - there is not a severe obstruction of sunlight to the extent that would warrant orders from the Court.

6. The Jayawardenas say the bamboo will grow quickly and that they have difficulty pruning it. I accept that this may be the case but, because I do not find a severe obstruction, will not be making any orders on this basis.

Findings relevant to Part 2

7. Regarding damage, the Jayawardenas say the bamboo has been hitting their roof guttering during strong winds and will damage their guttering. They say it already hits the guttering, but has not damaged it. Mr Salvia has pruned some of the bamboo recently. In the near future, a period the Court has consistently regarded as 12 months as discussed in Yang v Scerri [2007] NSWLEC 592, the bamboo is unlikely to strike the guttering with any more force than it has done previously. Therefore I am not satisfied that the bamboo is likely to cause damage in the near future.

8. The Jayawardenas raised concerns that leaves and debris fall from the bamboo into their property. They do not say that it has caused any damage. Therefore orders cannot be made on that basis.

Orders

9. As a result of the foregoing the Court orders that:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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