The Owners - Strata Plan 14416 v The Owners - Strata Plan 16857

[2021] NSWLEC 1659

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan 14416 v The Owners – Strata Plan 16857 [2021] NSWLEC 1659

Hearing dates:

21 October 2021

Date of orders:

21 October 2021

Decision date:

21 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [13]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight and views – whether trees are planted to form a hedge – whether the obstruction is severe – strata plan as applicant in proceedings pursuant to Pt 2A of the Trees Act – whether an owner or occupier has lost access to sunlight or views – consent orders

Legislation Cited:

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

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009

Category:

Principal judgment

Parties:

The Owners – Strata Plan 14416 (Applicant)
The Owners – Strata Plan 16857 (Respondent)

Representation:

Counsel:
L Sims (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/203854

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. The Owners – Strata Plan 14416 (‘the applicant’) applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for The Owners – Strata Plan 16857 (‘the respondent’) to prune, remove and relocate various trees on the respondent’s land, which adjoins the applicant’s land. The trees are close to the applicant’s building. The properties are in Elizabeth Bay, adjacent to Sydney Harbour.

2. Prior to the hearing, the parties reached an agreement resulting in consent orders, which they proposed to the Court. The Court must be satisfied that they are orders the Court can and would make within the jurisdiction of Pt 2A of the Trees Act (Breen v Caronna [2008] NSWLEC 293 at [6], [7]). Via MS Teams, I heard submissions from the parties as to the relevant jurisdictional issues.

3. Consent orders relate only to trees T9–13, being a row of bamboo. Orders relating to other trees within the originating application were not pressed.

Jurisdictional tests are satisfied

4. It is not disputed that the bamboo forms a hedge. Arborists for both parties were of the opinion that the bamboo formed a hedge. Photographs show the bamboo forms a screen in front of the applicant’s building, serving the purpose for which it was clearly planted. According to arborist, Guy Paroissien, the bamboo is up to 14 metres tall. I am satisfied that the bamboo T9–T13 is planted so as to form a hedge rising to more than 2.5 metres in height. Bamboo is a tree for the purposes of the Trees Act (Trees (Disputes Between Neighbours) Regulation 2019, cl 4). Therefore, Pt 2A of the Trees Act applies to these trees (s 14A of the Trees Act).

5. The applicant made reasonable effort to reach agreement with the respondent (s 14E(1)(a) of the Trees Act), borne out by the proposed consent orders.

6. Ms Sims took the Court to photographs and descriptions in town planner Kerry Gordon’s report, demonstrating to the Court’s satisfaction that the bamboo severely obstructs, from Units 1 and 10, valued views that would otherwise be available (s 14E(2)(a) of the Trees Act).

7. There are no matters at s14F that would prevent me making the proposed consent orders, which clearly consider and address any potential impacts on privacy for the respondent. Balancing the bamboo’s benefits against its impacts to the applicant, I accept that the proposed consent orders are reasonable (s 14E(2)(b) of the Trees Act).

8. The nature of the orders is such that they are orders that can be made pursuant to s 14D of the Trees Act.

9. The application is made pursuant to s 14B of the Trees Act:

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

10. I can see nothing at s 14B of the Trees Act to prevent a strata plan, as an owner of land, applying to the Court for orders under Pt 2A of the Trees Act. However, the Court has relied upon background material such as the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the 2009 Review’) in many hearings under Pt 2A: for instance, see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462). The 2009 Review concluded (on p 35) that the scope of Pt 2A should be limited to:

“…cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase.”

This statement was clearly worded with a dwelling owner in mind, not a strata plan. To my mind, the owners or occupiers of affected units must have lost access to views or sunlight. The loss cannot be considered for an entire building within which are various dwelling owners. I put this to the parties, seeking to resolve their dispute within the framework of the legislation.

11. The parties provided further information. The bamboo was planted in December 2017. Title searches show that Unit 1 was last transferred in 2010 and Unit 10 was last transferred in 2000. On this basis the Court can be satisfied that owners of both Unit 1 and Unit 10 had a view prior to the growth of bamboo into that view, and have now lost their views due to the bamboo.

12. A separate stand of bamboo (T7) is not part of this hedge, but the Court notes here that the respondent undertakes to remove T7 within 28 days of the date of these orders.

Orders

13. As a result of the foregoing, the Court orders by consent that:

1. Within 28 days of the date of these orders, the Respondent is to remove the bamboo labelled T9–T13, as detailed on the plan at Annexure “A”.

2. Within 35 days of the date of these orders, the Respondent is to:

1. relocate and replant the bamboo referred to in order (1); or

2. purchase and plant new bamboo.

3. The bamboo referred to in order (2) is to be planted or replanted (as the case may be) in an area approximately in line with the existing bamboo (numbered T20–T24), no closer to the boundary of the Applicant’s property than T26, and no closer to the waterfront on the Respondent’s property than the approximate location of the end of the balcony line as shown on Annexure “A”.

4. The costs of undertaking the works referred to in order (2) are to be shared equally between the Applicant and the Respondent, with the Applicant’s contribution capped at a maximum amount of $5,000. Payment is to be made by the Applicant within 7 days of the provision of invoice(s) from the Respondent.

5. The application is otherwise refused.

6. The exhibits are returned other than A, C and D.

……………………………….

D Galwey

Acting Commissioner of the Court

Annexure A (819632, pdf)

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Decision last updated: 27 October 2021