Smyth v Hayim

[2012] NSWLEC 1318

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smyth v Hayim [2012] NSWLEC 1318
Hearing dates:	12 November 2012
Decision date:	12 November 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Mr K Smyth (Applicant) Mr G Hayim (Respondent)
Representation:	Applicant: Mr K Smyth (Litigant in person) Respondent: Mr G Hayim (Litigant in person)
File Number(s):	20795 of 2012

Judgment

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

1. COMMISSIONER: This is an application made under s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Maroubra against the owner of a row of bamboo growing on an adjoining property.

1. The applicant contends that the "bamboo trees shadow the lounge room and kitchen area [of his dwelling] throughout the day". He seeks orders for their removal.

1. The bamboo the subject of the application is growing along the rear south-eastern boundary of the respondent's property. In 2007 Randwick City Council approved a development application for the construction of a swimming pool and associated landscaping at the rear of the respondent's property.

1. The approved plans show Bambusa textiles 'Gracilis' (a clumping species of Bamboo) along the south-eastern and south-western boundary fences and a nominated height of 5m. The conditions of development consent indicate that several taller growing trees shown on the plan along the south-eastern boundary were to be deleted.

1. An arborist's report commissioned by the applicant indicates that the bamboo on the respondent's property is a species of Phyllostachys sp. - a running bamboo. The applicant contends that some councils throughout Australia have declared this a noxious weed. The applicant also raised issues about potential damage to his sewer arising from the roots of these plants, leaf drop and the potential for mould. The applicant's position is that these factors add weight to his desire to have the plants removed.

1. In regards to the issues in [5], the applicant was reminded several times that he has made an application under Part 2A of the Act - 'Court orders - high hedges that obstruct sunlight or views' and not an application under Part 2 - 'Court orders - trees that cause or are likely to cause damage or injury' and therefore these issues have little relevance to his application. Under the Trees Act, the Court only has power to deal with a declared noxious weed if it meets the relevant jurisdictional tests under the Trees Act.

1. In applications made under Part 2A, there are a number of jurisdictional tests that must be satisfied before the Court's power to make orders under Part 2A is enlivened.

1. The Trees (Disputes Between Neighbours) Regulation 2007 prescribes 'bamboo' as a 'tree' for the purpose of the Act.

1. Section…