West v Arico

[2023] NSWLEC 1668

Land and Environment Court

New South Wales

Medium Neutral Citation:

West v Arico [2023] NSWLEC 1668

Hearing dates:

23 October 2023

Date of orders:

23 October 2023

Decision date:

23 October 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – bamboo – obstruction of sunlight and views – whether the obstruction is severe – whether orders can be made for other trees

Legislation Cited:

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

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:

Steber v Job [2019] NSWLEC 1308

Category:

Principal judgment

Parties:

Jye Edward West (Applicant)
Michael Ross Arico (First Respondent)
Domitilla Arico (Second Respondent)

Representation:

Counsel:
J West (Self-represented) (Applicant)
M Arico (Self-represented) (First Respondent)
D Arico (Self-represented) (Second Respondent)

File Number(s):

2023/259539

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: Jye West (the applicant) owns a residential property in Denistone. He has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders relating to trees on a neighbouring property belonging to Michael and Domitilla Arico (the respondents). Mr West seeks: an order for the removal of a bamboo hedge, which he claims obstructs sunlight to, and views from, his dwelling; an order preventing the respondents planting another hedge along the common boundary; and an order for branches of other trees to be maintained. The respondents wish to retain the bamboo hedge for privacy.

2. The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on views and sunlight. Privacy and overlooking issues were observed at both properties.

The trees

3. In 2020, the Aricos planted a row of Slender Weavers Bamboo along their north-eastern boundary, being the common boundary shared with Mr West. At the time of the hearing, the bamboo was up to 4 metres tall, but it has been taller.

4. Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. The bamboo is planted so as to form a hedge, and reaches more than 2.5 metres in height (s 14A of the Trees Act). Therefore, Pt 2A of the Trees Act applies to the bamboo.

5. Further from the boundary, the Aricos have several other trees on their land. Those trees are not planted to form a hedge, so Pt 2A of the Trees Act does not apply to them. The Court cannot make the orders that Mr West seeks in his application for pruning other trees.

Framework

6. The key jurisdictional tests in these proceedings are found at s 14E of the Trees Act:

14E Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b) the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

Reasonable effort to reach agreement

7. The applicant has attempted some negotiation with the respondents. After they refused to remove the bamboo, he attempted to agree on a height at which it should be maintained. The respondents claim they did not receive one of the emails in the application. Nevertheless, on the evidence before me, I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents.

Obstruction of sunlight

8. Mr West claims that the bamboo severely obstructs sunlight to two windows of his dwelling. He submitted that his dwelling, which was constructed only recently, complies with all relevant development consents. He said the dwelling was set back from his southern boundary further than the minimum requirement so as to allow access to sunlight. The windows are to a living area and a bedroom, with sills that are at least 1.5 metres above floor level.

9. The windows face southwest, suggesting to me that direct sunlight to these windows would be limited to late afternoons in summer. Mr West suggested otherwise, but provided no shadow diagrams or photographs in support of this. The bamboo was not higher than the windows at the time of the hearing. Mr West provided photographs showing that the bamboo was taller before the respondents pruned it recently. The only photographs in which the sun can be seen through, or behind, the bamboo are taken from his back garden, not from the two windows. On the evidence before me, I cannot be satisfied that the bamboo severely obstructs sunlight to windows of the applicant’s dwelling.

Obstruction of views

10. I observed the outlook from both windows in Mr West’s application. Although the tops of some bamboo culms could be seen, they were not severely obstructing any view. When the bamboo was taller, the obstruction was no doubt greater than I observed. Photos on page 7 of Mr West’s application show the outlook from the two windows. The bamboo was taller, but had not formed a dense screen at that point, so the sky and landscape could still be seen through the bamboo culms. I do not consider the bamboo’s obstruction of a view was severe.

Consideration of other matters

11. Having found that the bamboo does not cause a severe obstruction of either views from the applicant’s dwelling, or sunlight to his windows, the Court cannot make any orders in these proceedings (s 14E(2) of the Trees Act). With the history of disputes around hedges, and relevantly bamboo hedges, in mind, it is worth noting some matters here that may minimise the potential for any ongoing dispute between the parties, and perhaps avoid the dispute returning to Court in future.

12. Bamboo hedges grow quickly, forming a dense screen. Indeed, the respondents planted it with this in mind, seeking a screen to prevent overlooking from the applicant’s property to theirs. Bamboo hedges can be difficult to maintain, requiring frequent pruning if their height is to be controlled. When planted against a boundary fence, bamboo may damage the fence over time. Bamboo culms that overhang the boundary can be difficult to access from within the property, often creating an onerous maintenance task for the neighbour.

13. The Aricos stated that they want to grow the bamboo as tall as possible for privacy. Although I found that the view obstruction was not shown to be severe, if the bamboo grows taller and denser it may well form a screen that prevents an outlook from Mr West’s windows. In Steber v Job [2019] NSWLEC 1308, I found that a severe obstruction that is generally ongoing, even if it is not present on the day of the hearing, might give the Court a reason to make orders. In that matter and others, when ongoing maintenance seems unlikely or unreasonable, the Court has ordered removal of bamboo hedges rather than regular pruning. These are matters the Court might consider should the dispute return to Court.

Orders

14. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 07 November 2023