Smith v Ivanhoe [2023] NSWLEC 1807

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Ivanhoe [2023] NSWLEC 1807 Hearing dates: 11 December 2023 Date of orders: 11 December 2023 Decision date: 11 December 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight to window – sunlight obstruction mainly due to other trees Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hendry v Olsson [2010] NSWLEC 1302 Category: Principal judgment Parties: Stephen Smith (First Applicant) Cassandra Smith (Second Applicant) Monique Ivanhoe (Respondent) Representation: S Smith (Self-represented) (First Applicant) C Smith (Self-represented) (Second Applicant) M Ivanhoe (Self-represented) (Respondent) File Number(s): 2023/337260 Publication restriction: Nil

Judgment

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

Background 1. Since 2006, Stephen and Cassandra Smith, (the Applicants), have owned a small single storey dwelling in Rozelle, which they lease to tenants. The dwelling, which extends along the southern boundary, narrows towards the rear of the block with stepped outer walls. There is a small backyard on the northern side of the block which broadens towards the rear. 2. Monique Ivanhoe, (the Respondent), occupies a two-storey dwelling in an adjoining property located west of and about 2.2 metres (m) higher than the Applicants' land. The parties' share a 1.8 m tall fence along their rear boundary, which extends approximately from north to south. 3. In 2019, the Respondent planted Bambusa textilis var. Gracilis (Slender Weaver's Bamboo) (the bamboo) close to her side of the common boundary. Once the bamboo established, the Applicants requested the Respondent prune the bamboo's height due to shadowing and excessive debris. 4. Ms Ivanhoe refused as she contended that the shadow from a 15 m tall, broad domed Celtis sinensis (the tree) in her backyard, enveloped the bamboo's shadow and made the bamboo's shadowing irrelevant. The Respondent also contended that the bamboo contributed to both parties' privacy, and would become more important once an already approved third floor was added to her dwelling. The third floor was to include floor-to-ceiling windows facing the Applicants' property. 5. When their tenants complained of increased sunlight obstruction along with growth of mould in the bathroom, the Applicants maintained that the bamboo was responsible for a severe obstruction of sunlight to windows of their dwelling due to its height and close proximity to the boundary. The Applicants also claimed that both parties would retain privacy if the hedge was pruned to 2.5 m tall. 6. Consequently, Mr and Ms Smith made an application with the Land and Environment Court, pursuant to s 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act).