Land and Environment Court New South Wales Medium Neutral Citation: Britten v Smith [2024] NSWLEC 1458 Hearing dates: 28 March 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – Review of the Trees Act – trees severely obstructing sunlight before applicants' occupation – other causes of sunlight obstruction Legislation Cited: Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F Trees (Disputes between Neighbours) Regulation 2019, s 4 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Byrne v Davies [2024] NSWLEC 1295 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Lee v Stapleton [2022] NSWLEC 1430 Texts Cited: NSW Justice & Attorney General's Department 'Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)' (November 2009) Category: Principal judgment Parties: Jonathan Britten (First Applicant) Zoye Britten (Second Applicant) Don Smith (First Respondent) Wendy Smith (Second Respondent) Max Osbourne (Third Respondent) Representation: J Britten (Self represented) (First Applicant) Z Britten (Self represented) (Second Applicant) D Smith (Self represented) (First Respondent) W Smith (Self represented) (Second Respondent) M Osbourne (Self represented) (Third Respondent) File Number(s): 2024/35110 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. Jonathan and Zoye Britten, the applicants, share a boundary with the respondents, Don Smith, Wendy Smith, and Max Osbourne, between their properties in Kiama. The parties' properties face different streets, such that the applicants' rear boundary is the front portion of the respondents' side boundary. The applicants' land is located south of the respondents' property. 2. The Brittens' noted that no vegetation was growing along the common boundary upon their initial occupation in 2011. In 2018 or 2019, however, the respondents planted Bambusa textilis var. Gracilis (Slender Weavers Bamboo) (the bamboo) along their southern boundary, which rapidly established into a dense tall hedge. 3. The respondents, who represented a Strata body, contended the hedge planting was a condition of a development application (DA) approval from Kiama Municipal Council (Council) and that their DA's Landscape Plan specified Slender Weavers Bamboo. The respondents appreciated the aesthetics of the bamboo and the privacy it provided. They preferred no intervention with the bamboo but were prepared to accommodate pruning to a height of about 6 metres (m). 4. The applicants said the bamboo had reached a height of about 9 m and claimed it severely obstructed sunlight to windows of their dwelling. They nominated two windows (W1 and W2) and estimated, at question 4 of the Tree Dispute Claim details (Exhibit B), that 8 hours of sunlight to W1 and W2 was lost as a result of the bamboo hedge. 5. Further, Mr and Mrs Britten contended that "the mass/weight of the bamboo hedge causes it to rest on our roof line and in our gutter" and that it constantly lost leaves into their property and onto their roof, resulting in obstructed gutters and downpipes. 6. Based on the respondents ongoing reluctance to prune the bamboo to an agreed height, Mr and Mrs Britten submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act"), seeking the following orders: "1. Hedge to be pruned to a height allowing sunlight into the northern exterior room and toilet at the respondents' expense. 2. Overhanging hedge to be removed from our property in line with the common boundary at the respondents' expense. 3. Hedge height and mass to be maintained bi-annually at set times at the respondents' expense." Framework 1. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to a window of the applicants' dwelling, or of views from the applicants' dwelling. If so satisfied, the Court must consider a range of matters such as the benefits of the trees and the privacy they provide. Onsite hearing: observations and submissions 1. The hearing took place onsite. Both parties attended and the applicants were self-represented. The respondents were owners of Strata Plan 95313, in which case the Strata Plan would usually be the applicant in proceedings under the Trees Act. The respondents stressed that the question of their identity had been addressed by the Registrar at the procedural hearing of 5 March 2024, with directions to use their names rather than the Strata Plan. The respondents' property was small with few owners. According to Minutes of a Strata Committee Meeting, dated 11 July 2023, Mr M Osbourne was Chairperson of the Strata Committee and Mrs W Smith was Secretary and Treasurer. Both Mr Osbourne and Mrs Smith attended the hearing, as did Mr Smith. In this context, and because the applicants made no objection to the hearing proceeding, I set aside questions of the respondents' identity on the application as it was not relevant to determination of the matter. 2. The bamboo was healthy and vigorous. It formed a dense hedge about 8 m tall along the parties common boundary and continued for more than 20 m along the respondents' common boundaries with the applicants' next two west side neighbours. The bamboo barely extended east of the street frontage of the respondents' dwelling, however. 3. The applicants' dwelling is single storey while the respondents' is two-storey and there were windows along the southern side of the respondents' dwelling. Jurisdictional requirements 1. In Pt 2A, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22]. Do the trees form a hedge? 1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act? 2. Section 14A(1) states: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 1. Bamboo is prescribed as a tree under s 4 of the Trees (Disputes between Neighbours) Regulation 2019. 2. The bamboo averaged about 8 m tall and formed a barrier like a wall. The respondents noted planting the bamboo to form a hedge. Therefore, s 14A(1) of the Trees Act is satisfied. 3. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner (a) sunlight to a window of a dwelling situated on the applicant's 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. 1. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Both parties acknowledged several meetings to discuss the bamboo and failure to reach an agreement, which is satisfactory evidence to engage s14E(1)(a) of the Trees Act. 2. Section 14E(1)(b) has been engaged as the applicants provided evidence of serving the application with notice on the respondents, and on Council, in accordance with s 14C of the Trees Act. 3. The next step is to assess the severity of the obstruction of sunlight to a window of the applicants' dwelling, or a view from the applicants' dwelling as a consequence of any or all of the trees in the hedge. 4. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (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. Is the sunlight obstruction severe? 1. In Exhibit B, at question 3, the Britten's provided answers based on their initial occupation in 2011 and omitted to note demolition and construction of a new dwelling with a different design and location on the site, which they undertook in 2022-2023, notwithstanding that their diagram at question 2 showed the new dwellings' configuration. As contended by the respondents in their submission of 18 March 2024 (Exhibit 1), the new dwelling is the subject of this application (question 3(g)), not the now demolished 2011 dwelling and garage, and the hedge was well established when the applicants occupied their new dwelling in or around July 2023. 2. The Interpretation Act 1987 permits reference to a limited range of extrinsic material to assist in interpreting the Trees Act. In this regard, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review'). 3. On page 39, the Review describes the scope of the Trees Act. In part, this says: "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". 1. Consequently, under the jurisdiction of the Trees Act, the Court has consistently determined that applicants are not entitled to sunlight (or a view) which was not available when they purchased their property. The same rationale applies to sunlight or views that are newly obstructed or changed after alterations and additions to a dwelling, or after the construction of a new dwelling, given that the Court is required to consider "whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to)", at s 14F(b) of the Trees Act. 2. A similar situation was considered in Byrne v Davies [2024] NSWLEC 1295; at [58]: "58 Construction of the applicant's dwelling preceded the planting of the hedge, but the applicant undertook a kitchen extension in 2020 that created new viewing locations. Just as, "it would not be appropriate…to gain additional solar access [or in this case a view] which had not existed at the time of the purchase" (McDougall; at [23]), it would be unreasonable for an applicant to create new viewing locations, then expect a respondent to clear foliage to establish and maintain such "new" view paths free of obstruction by existing hedges. Were this to be considered reasonable, an applicant could, for example, reconfigure a two-story dwelling by moving living areas downstairs with an expectation of the removal or major pruning of respondent's hedge trees to remedy a severe view obstruction. In its extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] – [81] …". 1. In this context, the Court must assess the severity of the obstruction of sunlight to nominated windows of the applicants' dwelling relative to the likely proportions and condition of the hedge upon the applicants' occupation of their dwelling in mid-2023. The respondents nominated the bamboos' height in mid-2023 as 7 m relative to its current height of about 8 m and I consider such an estimate to be reasonable. 2. W1 was a north facing opaque window in an outside toilet adjacent to an external storage cupboard, which cumulatively supported the northern end of the carport roof close to the common boundary. The applicants described them as "the northern exterior room and toilet" in their proposed Order 1. I understand that a separate garage had been in this location prior to demolition. Though sunlight to this window was severely obstructed by the hedge, I am not satisfied that sunlight obstruction of W1 would be much different to that experienced by the applicants upon occupying the dwelling in 2023. Any marginal increase in obstruction severity in the interim could not be considered to be severe. 3. Further, as the Cambridge dictionary defines a dwelling as "a house or place to live in", I am not satisfied that W1 should be considered to be a window of a dwelling as it is a window in a separate outdoor toilet. The Court made a similar finding regarding a garage in Lee v Stapleton [2022] NSWLEC 1430; at [53]. 4. W2 faced north from the northwestern side of the applicants' dwelling towards the carport which had a covered roof. As the bamboo commenced near the front building alignment of the respondents' two-story dwelling, morning sunlight would be available to W2 from about mid-spring through summer to about mid-autumn with minor obstruction by the bamboo, but the carport roof would obstruct sunlight to W2 through the middle of the day until midafternoon. In winter, W2 would likely receive sunlight until about 9:30am, sunlight would be obstructed by bamboo until about 11:30 am, after which the carport roof would again be the primary obstruction of sunlight to W2. 5. As the size and obstructive impact of the bamboo was unlikely to have altered significantly in the period of about 9 months since the applicants' occupied their dwelling, and due to the marked sunlight obstruction caused by the applicants' carport roof which is a consideration required at s 14F(m), I am not satisfied that the obstruction of W2 as a consequence of the hedge is severe. 6. As the obstruction of sunlight due to the hedge is not severe, s 14E(2)(a) of the Trees Act is not satisfied and therefore, the application is refused. 7. If the Court had determined the obstruction of sunlight to a window of the applicants' dwelling as a consequence of any or all of the trees in the hedge constituted a severe obstruction, thus engaging s 14E(2)(a)(i), the Trees Act requires the Court to also consider the balancing of interests in s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (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. 1. In order to determine the balance inherent in this subsection, consideration of additional relevant matters in s 14F of the Trees Act is required. The respondents noted the importance of the hedge for their and the applicants' privacy (s 14F(l)), and that the Council consent of their 2018-19 dwelling construction required "[s]creen planting to min 3m high to boundary" (s 14F(e)). The applicants' own Planning Report linked to their DA also referred to the screening bamboo which protected the applicants' privacy. Had the balancing exercise at s 14E(2)(b) of the Trees Act been required, these elements would all be considered. 2. Further, s 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case, one of which is the overhanging foliage and dropping debris raised by the applicants. Though the applicants prefer no encroachment by the hedge across the common boundary, there is no remedy under the Trees Act for encroachment unless it causes damage. There is also no specific arrangement to address hedge maintenance, though I noted the respondents provided written permission for the applicants to remove overhanging foliage on their property, in Exhibit 1. 3. With respect to debris blowing or falling from the bamboo, the Court has established the following Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker); at [20]: "20 … "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."" 1. As a consequence of this maintenance expectation established in Barker, the applicants' submissions regarding bamboo debris do not invoke the jurisdiction of the Trees Act. Conclusions 1. While sunlight was severely obstructed to windows nominated by the applicants, the extent of sunlight obstruction due to the hedge was likely to have changed only marginally since the applicants occupied their dwelling in mid-2023. Further, the applicants' carport roof caused significant sunlight obstruction of W2. Consequently, I was not satisfied the obstruction of sunlight by the hedge was severe, thus the Court has no powers to make orders, and the application is refused. Orders 1. The orders of the Court are: 1. The application is refused. J Douglas Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2024