Smyth v Hayim [2012] NSWLEC 1318

Land and Environment Court New South Wales

Medium Neutral Citation: Smyth v Hayim [2012] NSWLEC 1318 Hearing dates: 12 November 2012 Decision date: 12 November 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Mr K Smyth (Applicant) Mr G Hayim (Respondent) Representation: Applicant: Mr K Smyth (Litigant in person) Respondent: Mr G Hayim (Litigant in person) File Number(s): 20795 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Maroubra against the owner of a row of bamboo growing on an adjoining property. 2The applicant contends that the "bamboo trees shadow the lounge room and kitchen area [of his dwelling] throughout the day". He seeks orders for their removal. 3The bamboo the subject of the application is growing along the rear south-eastern boundary of the respondent's property. In 2007 Randwick City Council approved a development application for the construction of a swimming pool and associated landscaping at the rear of the respondent's property. 4The approved plans show Bambusa textiles 'Gracilis' (a clumping species of Bamboo) along the south-eastern and south-western boundary fences and a nominated height of 5m. The conditions of development consent indicate that several taller growing trees shown on the plan along the south-eastern boundary were to be deleted. 5An arborist's report commissioned by the applicant indicates that the bamboo on the respondent's property is a species of Phyllostachys sp. - a running bamboo. The applicant contends that some councils throughout Australia have declared this a noxious weed. The applicant also raised issues about potential damage to his sewer arising from the roots of these plants, leaf drop and the potential for mould. The applicant's position is that these factors add weight to his desire to have the plants removed. 6In regards to the issues in [5], the applicant was reminded several times that he has made an application under Part 2A of the Act - 'Court orders - high hedges that obstruct sunlight or views' and not an application under Part 2 - 'Court orders - trees that cause or are likely to cause damage or injury' and therefore these issues have little relevance to his application. Under the Trees Act, the Court only has power to deal with a declared noxious weed if it meets the relevant jurisdictional tests under the Trees Act. 7In applications made under Part 2A, there are a number of jurisdictional tests that must be satisfied before the Court's power to make orders under Part 2A is enlivened. 8The Trees (Disputes Between Neighbours) Regulation 2007 prescribes 'bamboo' as a 'tree' for the purpose of the Act. 9Section 14A(1) states that Part 2A only applies to groups of two or more trees that are planted so as to form a hedge, and that rise to a height of at least 2.5m. I am satisfied that the row of bamboo, the subject of this application, is a 'hedge' for the purpose of the Act. 10The next question to be answered is whether any of the trees, the subject of the application, severely obstruct sunlight to the nominated windows of the applicant's dwelling. 11Section 14E(2) states: (2)The Court must not make an order under this Part unless it is satisfied: (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. 12The nominated windows are located on the north-western side of the applicant's dwelling. This side of the dwelling adjoins the rear boundaries of at least four other properties apart from that belonging to the respondent; the respondent's property is roughly in the centre of the applicant's lot. The distance between this side of the applicant's dwelling and the dividing fence between the parties' properties is about one metre. 13Window 1 (W1) is the lounge room window. The bamboo in the south-western corner of the respondent's property is opposite about 2/3 of the width of this window. Following complaints from the applicant about bamboo overhanging his property, the respondent installed a steel rail along the inside of the fence to keep the bamboo back from the applicant's property. 14The other window, W2, is a high set window in the kitchen; only a very tall person would be able to look through it. W2 is located to the east of W1 towards the rear of the house. 15It appears that prior to the planting of the bamboo, there was a very large Chinese Elm growing in the respondent's rear garden. In 2006, Randwick City Council approved its removal. The parties stated that this tree shaded both their properties. When the Chinese Elm was removed, the applicant enjoyed the additional sunlight through both W1 and W2. 16The applicant contends that the bamboo is now blocking that sunlight throughout the day, and as it grows, it will further limit sunlight into his dwelling. He is particularly concerned about winter sun. 17In the absence of shadow diagrams, I must rely on the observations I made at the time of the hearing. While the application contains some photographs taken through the lounge room window, there is no indication of the date and time they were taken. 18While the Bamboo certainly obstructs sunlight to both windows, I am not satisfied the obstruction is severe. The bamboo did not form a solid barrier and it was clear that, at the time of the hearing, filtered light could enter the applicant's dwelling. I also observed that afternoon sun into W1 would not be obstructed by the bamboo but could be obstructed by a Mango tree growing in the property to the west of the respondent's property. Similarly, large trees growing on a property to the east of the respondent's property would probably block morning sun to W2. 19The Act uses the word 'severely'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Thus the Act sets a high bar for the level of obstruction caused by the trees the subject of the application. 20As stated above, I am not satisfied the obstruction is severe and as s 14E(2)(a)(i) is not satisfied, no orders can be made for any intervention with the bamboo. However, as indicated in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change it is possible for a fresh application to be made. 21Therefore, the Orders of the Court are: (1)The application is dismissed. _____________________ J Fakes 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: 13 November 2012