Collins v Westbrook

1. COMMISSIONER: Mr Collins (the Applicant) applied to the Court, pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Respondent to prune the bamboo hedge located between the properties, repair damage to the Colorbond fence caused by the bamboo and poison or otherwise prevent regrowth of bamboo encroaching into the Applicant’s property. The hedge is located close to the Respondent’s side boundary. The Applicant shares a side boundary with the Respondent’s side boundary.

2. The Applicants submit that the trees severely obstruct sunlight reaching window and door openings of the dwelling, in particular including the side and rear access area and southern portion of the rear yard.

3. Mr Westbrook (the Respondent) enjoys the privacy and amenity benefits the bamboo hedge provides (particularly to the rear yard where there is a spa pool) and seeks to maintain the hedge in its current state. The hedge is a clumping bamboo hedge and has grown to between 3 and 8 metres in height.

4. The Applicant is also concerned about the physical damage the bamboo hedge has caused (and will potentially continue to cause) to the shared fence between the properties and various growth of small bamboo shoots into the Applicant’s property.

5. No expert evidence was given during the hearing and I rely on my observations made during the site view and hearing.

6. The issues raised by the Applicant regarding shade caused by the hedge located on neighbouring land must be considered under Part 2A of the Trees Act.

7. The issues raised by the Applicant regarding damage caused by the hedge located on neighbouring land must be considered under Part 2 of the Trees Act.

8. The bamboo hedge is planted along the shared property boundary and the parties agree have been planted as a hedge and rise to more than 2.5 metres in height and the jurisdictional test have been satisfied. I am satisfied that the trees have been planted so as to form a hedge (s 14A(1)(a)) and the Court's power under s 9 of the Act has been engaged. The trees are on adjoining land (s 14B).

9. The issues to be determined are as follows.

10. Is there a severe obstruction of sunlight to windows caused by the hedge?

11. If so, does the Applicant’s desire for direct sunlight outweigh the reasons not to interfere with the hedge? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

12. An order must not be made unless the trees are severely obstructing sunlight to a window of a dwelling situated on the Applicant’s land, and the severity and nature of the obstruction is such that the Applicant’s interest in having the trees pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees.

13. The following addresses matters that must be considered in determining whether orders are appropriate.

14. The hedge is located to the east of the Applicant’s property and, I observed during the onsite hearing, does cast shade on the windows at the rear of the dwelling during some parts of the morning hours of the day. There are no other trees and vegetation that cast shade on to the windows. The Respondent’s dwelling roofline would cast some shade onto the Applicant’s property early in the morning.

15. The hedge was planted on the Respondent’s property after the Applicant had purchased their property.

16. The Respondent submitted that the hedge was planted as a part of a planned landscape design to act as a privacy screen and for the overall amenity benefits, and that removing the hedge would diminish these attributes.

17. During the onsite hearing I observed the position of the sun relative to the dwelling and Applicant’s windows and resultant shade patterns and concluded that the hedge added to the loss of sunshine by approximately one hour of sun during winter, and less than this during other seasons due to the higher position of the sun during those periods.

Is there a severe obstruction of sunlight?

12. An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land if the obstruction occurs as a consequence of trees being situated on adjoining land.

13. I can see nothing at s 14B of the Trees Act to prevent, as an owner of land, applying to the Court for orders under Pt 2A of the Trees Act. However, the Court has relied upon background material such as the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), 2009 (the ‘2009 Review’) in many hearings under Pt 2A. For instance, see Vartazarian v Elworthy [2020] NSWLEC 1462. The 2009 Review concluded, in part, (on p 35) that the scope of Pt 2A should recognise the significant health, environmental and other benefits of urban vegetation, and that there could be a presumption in favour of maintaining the existence and health of urban trees.

14. The Applicant’s dwelling is separated from the property boundary by a relatively narrow path. The bamboo grows against and along the property boundary and grows to a height equal to the eaves and forms a relatively dense screen that fills the vertical distance between the fence and the eaves of the dwelling. Although during the hearing I observed dappled shade passing through the bamboo, from my own observations I concluded that the bamboo obstructs some of the morning sun that would otherwise reach the subject windows of the Applicant’s dwelling and side access area. Although the hedge casts shade that represents a loss of sun, I find that the obstruction is not severe.

15. I have considered the matters at 14F of the Trees Act.

16. The bamboo has grown to a height of between 4 and 8 metres and is located close to the Applicant’s property boundary and dwelling. The bamboo was planted after the Applicant’s owned and lived in the house.

17. The bamboo has no historical, cultural, social or scientific value, and provides only a minor contribution to the local ecosystem and biodiversity, The bamboo does contribute to the privacy enjoyed by the Respondent particularly screening the spa pool located in their rear yard.

18. Although the hedge is adding to the feeling of encroachment in the side access area of the Applicant’s property, I am not satisfied that there is a severe obstruction of sunlight, and the application to prune the hedge will be dismissed. However, nothing prevents the parties from coming to their own agreement about pruning of the hedge to an agreed height as discussed by the parties during the site view and hearing.

Damage caused by the hedge

19. The Applicant also applied to the Court for removal of parts of the hedge pursuant to s 7 (Pt 2) of the Trees Act. The Applicant submitted that the hedge has damaged the existing Colorbond fence. No specific compensation for these damages is sought, only orders for the replacement of the fence where the Applicant submitted the fence is damaged and buckled.

20. In applications under Pt 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the Applicant's property or is likely to cause injury to any person.

21. No evidence was adduced during the hearing to my satisfaction that the growth of the bamboo hedge has caused damage to the fence other than normal wear and tear.

22. The potential growth of bamboo shoots into the Applicant’s property under the fence can be removed by hand or sprayed with herbicide. No evidence was adduced during the hearing to show that these shoots have caused any damage. Removal or treatment of these shoots is considered to be regular maintenance and orders for removal of this part of the hedge will be dismissed. As discussed during the onsite view and hearing, there is nothing preventing the parties from coming to an agreement about ongoing treatment of this issue.

Contribution of trees to privacy and landscaping

23. Even though I am not satisfied that the jurisdictional tests in s 10(1) and subs (2) are met, if they were I would need to consider the matters at s 12, this has been done below.

24. The hedge is close to the boundary between the properties and is able to survive pruning over the longer term.

25. The hedge was planted as a landscape element to provide a privacy screen in particular to the spa pool located on the Respondents property in the rear yard.

Conclusion

26. The trees were planted so as to form a hedge, however although adding to a feeling of encroachment into the Applicant’s land, it does not severely obstruct available sunlight. The application to prune the bamboo will be dismissed.

27. The growth of bamboo shoots into the Applicant’s property can be removed by hand or sprayed with herbicide. This is considered to be regular maintenance and orders for removal of this part of the hedge will be dismissed.

28. The hedge has not caused damage and orders for repairs to the fence will be dismissed.

Orders

29. The Court orders:

30. The application to prune and/or remove the hedge is dismissed.

31. The application for compensation for repair of the Colorbond fence is dismissed.

P Nichols

Acting Commissioner of the Court

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