Goldberg v Shaflender

Representation: Mr Jake Goldberg (Self represented) (Applicant)
Mr Leonid Shaflender (Self represented) (Respondent)

File Number(s): 2025/100690

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Mr Goldberg (the Applicant) applied to the Court, pursuant to 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. The bamboo is close to the Respondent’s rear and side boundaries of the rear yard of 73 Ocean Street Bondi. Of particular concern to the Applicant’s is the bamboo located along the Respondent’s rear boundary. The Applicant owns 18 Stephen Street Bondi and shares a rear side boundary with the Respondent.

2. Mr Shaflender (the Respondent) enjoys the privacy and amenity the bamboo provides for his rear yard and seeks to maintain the bamboo in its current state. The bamboo is mature and has reached a height of approximately 8-9 metres. The Respondent maintains the bamboo by way of thinning of the spears regularly throughout the year.

3. The Applicant is concerned about the amount of sunlight reaching the rear of their dwelling and rear yard of their property and submit the amount of shade cast by the bamboo onto their property is unreasonable and could easily be remedied by pruning.

Framework of the Act

4. Within the Act are several jurisdictional tests set out in Pt 2A of the Trees Act that must be satisfied before the Court can make orders, and a range of discretionary matters to be considered if orders are to be made.

5. Some jurisdictional tests are clearly met. I am satisfied that the applicant has tried to reach agreement with the respondent (s 14E(1)(a)). The trees are on adjoining land (s 14B) and rise to more than 2.5 metres in height (s 14A(1)(b)). The bamboo has been planted so as to form a hedge (s 14A(1)(a)). Bamboo is a tree for the purpose of the Act (s 3). On these matters the parties are agreed.

6. If any of the tests are met, the Court's power under s 14D of the Act to make any orders it thinks fit under s 14D is engaged.

7. The issues to be determined then are as follows.

8. Is there a severe obstruction of sunlight caused by the bamboo hedge?

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

10. An order must not be made unless the bamboo is 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 bamboo pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the bamboo.

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

12. The bamboo is located to the north of the Applicant’s property and would cast shade during some parts of the day. However, there is other vegetation located to the north on other properties that would still cast shade even if the bamboo was pruned or removed.

13. There are trees and vegetation located on the Applicant’s property which would still cast shade even if the bamboo was pruned or removed.

14. The bamboo hedge was planted on the Respondent’s property and was at its current height prior to the Applicant’s purchase of 18 Stephen Street.

15. The Respondent submits that the bamboo hedge was planted as a part of a planned landscape design to act as a privacy hedge and for the overall amenity benefits, and that pruning the bamboo hedge in an uneven manner would diminish these attributes.

16. During the onsite hearing I observed the position of the sun relative to the dwelling and rear yard and resultant shade patterns, and concluded that, when including other trees and vegetation, the bamboo added to the loss of sunshine by between approximately one and a half and two hours of morning sun during winter, and less than this during other seasons due to the higher position of the sun during those periods.

17. The part of the dwelling affected by shade is one of the main living areas.

Is there a severe obstruction of sunlight?

10. The application includes shadow diagrams (sun paths) against the bamboo hedge in photographs. These are useful; however, the severity of the obstruction is assessed on the day of the hearing. Based on its current height, I accept that there may be some obstruction of sunlight to the Applicant’s ground floor rear lounge room window, but I do not accept that it is severe. When including other vegetation casting shade towards the Applicant’s dwelling and rear yard, the bamboo does not cast shade that represents a complete loss of sun.

Discretionary matters

11. 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.

12. 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 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the 2009 Review’) in many hearings under Pt 2A. For instance, see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462. The 2009 Review concluded on p 35 that the scope of Pt 2A should be limited to:

“…cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase.”

13. As I am not satisfied that there is a severe obstruction of sunlight, orders will not be made, and the application will be dismissed. However, even if I were to accept the Applicant's contention that the bamboo causes a severe obstruction of sunlight to the ground floor lounge room, I would be required to consider the matters at s 14F of the Trees Act before making any orders, including s 14F(m): "anything, other than the trees, that has contributed, or is contributing, to the obstruction".

14. To sufficiently restore sunlight, the bamboo and additional vegetation located on other properties to the north including a large gum tree would need to be pruned or removed. This gum tree is not part of the hedge. I find that pruning and maintaining only the bamboo, which would be the only plants over which the Court could have jurisdiction if I were satisfied that the sunlight obstruction is severe, would not restore the sunlight to the extent sought by the Applicant. Therefore, if I had found otherwise on the jurisdictional question, I would still not be making orders after consideration of s 14F(m) of the Trees Act.

Conclusion

15. Only the bamboo is planted so as to form a hedge. Considering the overall view from each window and the ground floor lounge room, I am not satisfied that the bamboo causes a severe obstruction of sunlight. Therefore, the Court's jurisdiction under Part 2A of the Trees Act is not engaged.

16. Although I am not privy to the details, I note the Applicant’s offer to the Respondent for pruning. There is nothing to prevent the parties reaching such an agreement, which may to address most of the Applicant’s concerns while maintaining the benefits of the bamboo for the Respondent.

17. As a result of the above, the application is dismissed.

Orders

18. The Orders of the Court are:

19. The application to prune the bamboo hedge is dismissed.

P Nichols

Acting Commissioner of the Court

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