Varlow v Burgess

[2018] NSWLEC 1687

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Varlow v Burgess [2018] NSWLEC 1687
Hearing dates:	21 December 2018
Date of orders:	28 December 2018
Decision date:	21 December 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – tiger grass – obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) Trees (Disputes Between Neighbours) Regulation 2014
Cases Cited:	Tenacity Consulting v Waringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Raymond Varlow (Applicant) Lynelle Burgess (Respondent)
Representation:	R Varlow, litigant in person (Applicant) M Hay, solicitor (Respondent)   Solicitors MCW Lawyers (Respondent)
File Number(s):	317177 of 2018

Judgment

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

Background

1. Several clumps of tiger grass grow in a row in a planter box on Mrs Burgess’ property next to the common boundary shared with her neighbours, the Varlows. The plants, resembling bamboo, are over 2.5 metres tall. There may be a question over whether tiger grass is a tree, but as it closely resembles bamboo, which is prescribed by the Trees (Disputes Between Neighbours) Regulation 2014, I am willing to accept it is a tree for the purposes of this application.

2. The Varlows have tried to reach agreement with Mrs Burgess (‘the respondent’) for the plants to be pruned so that their views and access to sunlight might be maintained. Having no success, Mr Varlow (‘the applicant’) applied to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the plants to be pruned to a height of 2.5 metres and maintained below 2.8 metres.

Onsite hearing

3. At the onsite hearing Mr Varlow explained that since making the application he has learnt that the Court’s jurisdiction for sunlight obstruction only applies where the obstruction is to a window of the dwelling, rather than to other areas of the property. Nevertheless, he is concerned about such an obstruction developing in future as the plants grow. He says the plants might grow to a height of 5 metres. Mr Varlow showed the Court the view obstruction from their kitchen and living area, and the available view from their rear deck.

4. The rear of the Varlows’ dwelling faces northwest so that their main view takes in extensive areas of the vegetated slopes on the northern side of the Georges River. To their north, a section of the river is visible across their side boundary. The tiger grass is growing into this view. Mr Varlow says that, being their only water view, this is important to them.

5. Mr Hay, representing Mrs Burgess, argued the view obstruction is not severe. He further argued that the view is across a side boundary, from a sitting position, and that such views are difficult to maintain according to the view sharing principles outlined in Tenacity Consulting v Waringah [2004] NSWLEC 140.

Findings

6. I find that there is no obstruction of sunlight to the Varlows’ windows caused by the tiger grass, and therefore the Court has no jurisdiction to deal with the potential for future sunlight obstruction as the plants grow.

7. Considering the overall view available to the Varlows, I find the extent of view obstructed by the tiger grass is relatively minor. Nevertheless, I accept Mr Varlow’s submission that the water view is important to them and, as their photos show, it is a view they previously enjoyed. This water view, however, is also partially obstructed by other features such as the respondent’s shade sail over the pool, two shade umbrellas, her privacy screen, as well as more distant trees. The water view is still available to the Varlows from some positions, such as areas of their deck.

8. Considering the above, I do not find that the view obstruction is severe, so I cannot make any orders. Of course, plants grow and, as Mr Varlow opined, this tiger grass has the potential to become significantly taller. His concerns are not unfounded. Should circumstances change, Mr Varlow could make a new application to the Court.

Decision

9. As a result of the foregoing, the application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Amendments

28 December 2018 - Corrected: class 2