Tanios v Giourgas

[2022] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tanios v Giourgas [2022] NSWLEC 1178

Hearing dates:

31 March 2022

Date of orders:

31 March 2022

Decision date:

31 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is granted.

(2) During April and October of each year, beginning April 2022, the respondents are to prune, or engage and pay for a suitably experienced contractor to prune, the bamboo so that no part of the bamboo is more than 3 metres above ground level measured from the ground where the bamboo is planted.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – Pt 2A application – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe – privacy and other benefits of the trees

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12, Pt 2A ss 14B, 14E, 14F

Category:

Principal judgment

Parties:

George Tanios (Applicant)
Steven Giourgas (First Respondent)
Mary Giourgas (Second Respondent)

Representation:

Counsel:
G Tanios (Self-represented) (Applicant)
S Giourgas (Self-represented and Agent) (First and Second Respondents)

File Number(s):

2021/298768

Publication restriction:

No

Judgment

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

Background to the application

1. Acting Commissioner: George Tanios (the applicant) has applied to the Court pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for his neighbours Steven and Mary Giourgas (the respondents) to prune bamboo on their property.

2. Under Pt 2 of the Trees Act, Mr Tanios seeks orders for the bamboo to be pruned to prevent it striking and damaging his dwelling. Under Pt 2A, he seeks orders for the bamboo to be pruned to reduce its obstruction of sunlight to his dwelling.

The hearing

3. The hearing in these proceedings took place onsite. Mr Tanios was self-represented; Mr Giourgas represented both respondents. The Court visited both properties to view the bamboo and related issues.

The applicant made reasonable effort

4. Both Pt 2 (at s 10(1)) and Pt 2A (at s 14E(1)) of the Trees Act require the Court to be satisfied that the applicant has made reasonable effort to reach agreement with the respondents before the Court can make orders. Mr Tanios has discussed the issues with Mr Giourgas and unsuccessfully tried to arrange mediation. I am satisfied his efforts were reasonable.

Trees in the application

5. A row of bamboo (the bamboo) a few metres long is planted close to the common boundary in the Giourgas’ back garden. It appears to be Slender Weavers Bamboo, a clumping variety. It is more than 6 metres tall. Mr Giourgas has installed a steel bar between the fence and the bamboo to keep it off the fence and to minimise its overhang on Mr Tanios’ property. Above this he has tied the bamboo to horizontal stakes. Bamboo is a tree for the purposes of the Trees Act.

The Pt 2 application

6. Under Pt 2 of the Trees Act, at s 10(2), the Court must be satisfied before it makes any orders that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or injury to any person.

7. Mr Tanios’ photos show the bamboo was overhanging the boundary and hitting the roof guttering of his two-storey dwelling. Mr Giourgas pruned the bamboo when first told about the issue, but Mr Tanios found the bamboo still hit his dwelling during strong winds. After receiving the application, Mr Giourgas pruned bamboo culms closest to the fence. At the hearing he insisted that it no longer touches the dwelling. Mr Tanios stated that the bamboo still hits the dwelling during strong winds.

8. Mr Giourgas has gone to some effort to keep the bamboo away from Mr Tanios’ dwelling without reducing its overall height, which he wants to retain for privacy. However I accept that the tall, thin nature of the remaining bamboo would allow it to reach Mr Tanios’ dwelling during strong winds. Repeated impact would cause minor damage to the roof guttering. Furthermore, while the issue might seem insignificant to Mr Giourgas after the bamboo is pruned, maintaining it in this state requires regular attention and should not rely upon frequent reminders from Mr Tanios. I have considered the matters at s 12 of the Trees Act. The bamboo contributes to the respondents’ privacy, amenity and landscape value, but has limited benefits beyond this. In my mind it would be reasonable to reduce the bamboo’s height to avoid this ongoing issue. Mr Tanios suggested a height of 2.5–3 metres. If it is pruned to 3 metres every 6 months, the bamboo should no longer impact Mr Tanios’ dwelling.

Pt 2A application

9. The bamboo is only a metre or so from Mr Tanios’ dwelling. It is directly northwest of a living room window on the ground floor and a bedroom window on the first floor. No shadow diagrams were provided but, relying on my own experience, it seems that the bamboo would obstruct all, or nearly all, of the available winter sunlight to the living room window. The obstruction is severe. The room has other windows, but only this window gives access to afternoon sunlight during winter.

10. I have considered all relevant matters at s 14F of the Trees Act. Despite the bamboo’s benefits to the respondents’ privacy, amenity and landscape, it seems reasonable to restore Mr Tanios’ sunlight access by reducing the bamboo’s height. This may open up a sightline to the Giourgas’ back garden and swimming pool from the upstairs bedroom window, but that is not a window where people are likely to spend significant amounts of time. The window has a blind. A 6-metre fence would not be permitted here, so the expectation of a complete visual screen is perhaps unrealistic.

11. Again, Mr Tanios suggested reducing the bamboo to 2.5–3 metres. I find that pruning the bamboo at 3 metres every 6 months would allow reasonable sunlight access to Mr Tanios’ living room window. It should be practical for Mr Giourgas to maintain the bamboo at that height if he does not want to engage a contractor.

Orders

12. As a result of the foregoing, the Court orders that:

1. The application is granted.

2. During April and October of each year, beginning April 2022, the respondents are to prune, or engage and pay for a suitably experienced contractor to prune, the bamboo so that no part of the bamboo is more than 3 metres above ground level measured from the ground where the bamboo is planted.

……………………………….

D Galwey

Acting Commissioner of the Court

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