Holpert & anor v Sarsfield & anor [2016] NSWLEC 1031

Land and Environment Court New South Wales

Medium Neutral Citation: Holpert & anor v Sarsfield & anor [2016] NSWLEC 1031 Hearing dates: 25 January 2016 Date of orders: 04 February 2016 Decision date: 04 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; planter box; height above ground level; dwelling under construction - windows not yet installed; no severe obstruction Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2014 Cases Cited: Blau v Levi [2010] NSWLEC 1371 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Category: Principal judgment Parties: Mr O Holpert and Ms C Koellner (Applicants) Mr A Sarsfield and Ms G Smart (Respondents) Representation: Applicants: Mr O Holpert (Litigant in person) Respondents: Mr S Latham (Solicitor)

Solicitors: Respondents: Stuart Latham Solicitors File Number(s): 21056 of 2015

Judgment 1. COMMISSIONER: The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a bamboo hedge growing in a planter box on the respondents' property. The orders are sought on the basis that the bamboo severely obstructs sunlight to windows of their dwelling and views from their dwelling. 2. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied before the Court's powers to make orders under s 14D are engaged. 3. The first of these tests is to determine whether the trees, the subject of the application, are trees to which the Part applies. Section 14A(1) states: (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. Clause 4 Trees (Disputes Between Neighbours) Regulation 2014 states that bamboo is a tree for the purpose of the Act. 2. The bamboo is growing in a planter box built along the southern edge of a deck constructed above the respondents' garage. The deck is connected to a covered area of private open space at the front of their dwelling. At the time of the hearing, the height of the recently pruned bamboo when measured from the surface of the potting mix in the planter box was approximately 1.9m and about 2.5m from the surface of the deck inclusive of the planter. The wall of the garage, when measured from ground level on the respondents' property is approximately 2.8m high. 3. The respondents value the bamboo as it screens the unfinished second storey extension of the applicants' dwelling and provides a degree of privacy for the respondents' front deck and front bedrooms. 4. Although the plants are less than 2.5m, s 14A(1)(b) specifies 'above existing ground level'. Therefore while this may or may not have been intended in the drafting of the Act, and although it may be more logical to specify the height of the plant above the medium in which the plants are growing, the Part has been taken to apply to containerised plants on balconies and elevated structures where the overall height above ground level is more than 2.5m. In Blau v Levi [2010] NSWLEC 1371 the Court considered a similar situation; in that case the height of the plants in the planter box is not disclosed however it is implied that the arrangement of the plants and height of the balcony above ground level was sufficient to satisfy s 14A(1). 5. On this basis, I am satisfied that the bamboo plants are trees to which Part 2 A applies. 6. The next relevant and key test in applications made under Part 2A is found in s 14E(2) which 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. 1. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, such as the winter solstice, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.