Le Brocque & anor v Bills & anor [2014] NSWLEC 1201

Land and Environment Court New South Wales

Medium Neutral Citation: Le Brocque & anor v Bills & anor [2014] NSWLEC 1201 Hearing dates: 29 September 2014 Decision date: 29 September 2014 Jurisdiction: Class 2 Before: Fakes C; Durland AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Bamboo hedge; obstruction of sunlight; obstruction of views; balancing of interests Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali [2010] NSWLEC 1334 Devile & anor v Frith & anor [2014] NSWLEC 1002 Hinde v Anderson & anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Mr L R Le Brocque and Mrs C M Le Brocque (Applicants) Mr E Bills and Ms C Clarke (Respondents) Representation: Applicants: Mr L R Le Brocque and Mrs C M Le Brocque (Litigants in Person) Respondents: Mr C Wilmot (Solicitor) Respondents: MRM Thompson Norrie File Number(s): 20495 of 2014

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONERS: The applicants purchased their Fishing Point property on Lake Macquarie in 2001 and moved into their dwelling in 2003. In 2007 the respondents purchased the adjoining property to the west. In 2011, the respondents planted a row of bamboo along the rear portion of the common boundary with the applicants' property. The purpose of the planting was to screen their swimming pool from direct overlooking from the applicants' property. 2The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the pruning of the bamboo to ground level on the basis that the bamboo severely obstructs sunlight to windows of their dwelling and severely obstructs views of the Lake from their dwelling. 3The applicants have also applied for an order for compliance with a Local Land Board ruling made on 30 March 2011. This is beyond the Court's jurisdiction under the Trees Act to make any such order and no consideration will be given to it except to the extent that it provides some background to the dispute now before us. 4The respondents do not wish to remove the plants as they value them for the privacy they afford their property. 5In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first is whether the trees are planted so as to form a hedge (s 14A(1)(a). 6There is no dispute between the parties that the row of bamboo satisfies s 14A(1)(a). We agree with this position. As the bamboo is in excess of 2.5m, s 14A(1)(b) is met and therefore the Court's jurisdiction to consider the next relevant test, is engaged. 7Section 14E(1)(a) requires an applicant to have made a reasonable effort to reach an agreement with a respondent. While there is some dispute about the effort made, we are satisfied that this jurisdictional test is met. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraphs [191] to [196] Preston CJ provides a general discussion, which is further considered in Ball v Bahramali [2010] NSWLEC 1334 at paragraphs [39] to [45]. Essentially the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur. 8Of importance is s 14E(2), this 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. 9If s 14E(2)(a) is satisfied, the Court must consider the balancing of interests inherent in s 14E(2)(b) before its power to make orders under s 14D is engaged. The balancing of interests requires consideration of the relevant matters in s 14F of the Trees Act.