Jayawardena v Salvia & anor [2013] NSWLEC 1243

Land and Environment Court New South Wales

Medium Neutral Citation: Jayawardena v Salvia & anor [2013] NSWLEC 1243 Hearing dates: 4 December 2013 Decision date: 24 December 2013 Jurisdiction: Class 2 Before: Fakes C Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of sunlight; damage; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007 Cases Cited: Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: APPLICANT Joseph Jayawardena

RESPONDENTS Robert Salvia (First Respondent) Frances Salvia (Second Respondent) Representation: APPLICANT Alexander Maroulis

RESPONDENTS Richard Kouchoo APPLICANT Alexander Maroulis Lawyers

RESPONDENTS Trevor Hall Hall Partners File Number(s): 20676 of 2013

Judgment

Background 1Mr and Mrs Salvia ('the respondents') are the owners of a residential property in North Ryde. Approximately four years ago they planted a row of bamboo along one section of their rear boundary to gain and maintain privacy from the double-storey dwelling to their southwest. 2Mr Jayawardena ('the applicant') and his family own and live in the double-storey dwelling to the respondents' southwest. The bamboo, he says, causes them two problems. Firstly, they are concerned that the bamboo bends in the wind, hitting their roof guttering, and that it will therefore damage their property. Secondly, they say that the bamboo obstructs sunlight to windows of their dwelling. On 13 November of this year they filed an (amended) application under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for pruning of the bamboo due to the risk of damage (under Part 2 of the Act) and the sunlight obstruction (Part 2A of the Act). 3The respondents pruned the bamboo on 1 December, a few days before this hearing. While they are willing to maintain it at its current height, they do not want the bamboo cut to a lower height, as they say it affords them privacy. 4Before orders can be made under Part 2 of the Act, we must be satisfied at s 10(2)(a) that the trees are likely to cause damage in the near future (as the applicants do not claim past or present damage, nor risk of injury). Again, this is where there is, or at least has been, dispute between the parties. 5There is no dispute between the parties that the bamboo forms a hedge or that it is more than 2.5 metres tall. Bamboo is a tree according to the Act, as it is prescribed by the Trees (Disputes Between Neighbours) Regulation 2007. Therefore, regarding the application under part 2A of the Act, the jurisdictional tests at s 14A(1) are satisfied. For the Court to make orders under Part 2A with regard to sunlight obstruction, the jurisdictional tests at ss 14E(2)(a)(i) and 14E(2)(b) must also be satisfied, and this is where the parties are in dispute. Therefore we must determine if the bamboo is causing a severe obstruction of sunlight to windows and, if so, whether it is severe enough to warrant intervention when balanced against any reasons not to interfere, such as privacy. 6The severity of sunlight obstruction must be assessed based on the state of the hedge at the time of the hearing, not at the time the application was made. This is consistent with the findings of the Court in Tooth v McCombie [2011] NSWLEC 1004. Unlike views, which are relatively immobile, the sun is in different positions in the sky through the day and throughout the year. These differing positions of the sun should, of course, be considered, but any obstruction the hedge may cause should be considered using the hedge's state at the time of the hearing. 7Employees of the Council of the City of Ryde provided affidavits, mainly regarding the species of bamboo and its status (it is not classified as a noxious weed).