Power v Fabris

File Number(s): 2025/69840

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Mr Power of 160 Central Road, Avalon, submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act).

2. There is a row of bamboo situated along the boundary between 160 Central Road and the neighbouring property owned by Ms Fabris, the Respondent, of 162 Central Road. Some of the bamboo is currently taller than 3 metres in height. Within 3 months, all of the bamboo will be taller than 3 metres in height. The bamboo is located to the north-west of windows and skylights that provide the main natural light to the living area at the rear of the Applicant’s dwelling. Although there are other trees and vegetation that contribute to the shade of these windows and skylights, because of the proximity, height and density of foliage of the bamboo, I observed during the site inspection that the bamboo severely obstructs this natural light.

3. Although telephone contact was attempted prior to and during the hearing, the Respondent, Ms Fabris was absent for the site inspection. The site inspection and hearing were conducted despite the absence of the Respondent. I have relied upon written submissions made by the Respondent to make this judgment.

4. Previous communication by the Respondent regarding the bamboo have centred around the bamboo performing as a privacy screen for cabins that have been constructed on the Respondent’s property.

The Application

5. The Applicant, pursuant to s 14A (Pt 2A) of the Trees Act, has applied to the Court seeking orders that: the Respondents remove the bamboo, and that any future planting in this location is limited in height to 2.4 metres.

6. The Respondent is seeking orders that the bamboo is retained, however, if it is to be removed, that it be done at the expense of the Applicant.

Framework of Part 2A of the Trees (Disputes Between Neighbours) Act 2006

7. Part 2A of the Trees Act both enables and confines the Court’s jurisdiction regarding damage or injury caused by trees. The Court must be satisfied of certain matters at s 14 of the Trees Act before making any orders.

14F Matters to be considered by Court

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction,

(o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost,

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

(s) such other matters as the Court considers relevant in the circumstances of the case.

8. If I find that the jurisdictional tests at s 14F are satisfied, I can make orders as described at s 14D of the Trees Act, after considering a range of matters set out at s 14F. The orders sought by the Applicant can be made, or I may make other orders as I see fit.

9. There is no question that the test at s 10(1) is met as there is ample correspondence between the parties regarding the matter.

10. I am satisfied that the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application cause shade to be cast by the bamboo on to the Applicant’s property.

11. The bamboo has only recently been planted.

12. The bamboo has and will continue to grow to a height of 2.5 metres or more.

13. Removal of the bamboo does not require any other consent.

14. There are no other relevant development consent requirements or conditions relating to the Applicant’s land or the land on which the trees are situated.

15. The bamboo has no historical, cultural, social or scientific value.

16. The bamboo makes little contribution to the local ecosystem and biodiversity.

17. The bamboo makes little contribution to the natural landscape and scenic value of the land on which they are situated or the locality concerned.

18. The bamboo has a minor intrinsic value to public amenity.

19. The bamboo makes a minor contribution to soil stability, the water table or other natural features of the land or locality concerned.

20. The bamboo makes a contribution to privacy. This could be also achieved by planting that has a lower height at maturity.

21. Other than the bamboo, there are other trees that contribute to the shade of the windows and skylights, however due to the height, proximity and density of foliage of the bamboo, it is the main contributing factor to the excessive shade of the skylights and windows of the Applicant’s dwelling.

22. The Respondent has not taken any steps to remedy or rectify the obstruction.

23. The bamboo is and will cause sunlight to be lost as a result of the obstruction of more than two hours of sunlight per day, which when combined with other trees and vegetation, translates into no direct sunlight reaching the Applicant’s windows and skylights during the winter months.

24. The bamboo is evergreen and does not lose leaves during winter.

25. There are no views affected.

26. The windows and skylights being obstructed supply the main living area of the Applicant’s dwelling with natural light.

The Applicant’s submissions

27. The Applicant submits that the bamboo is the main contributing factor to excessive shade of the windows and skylights of the dwelling at 160 Central Road.

28. The Applicant seeks an order for removal of the bamboo and that any replacement planting be limited to 2.4 metres in height to avoid the problem reoccurring.

The Respondent’s submissions

29. In the absence of the Respondent at the hearing, the Respondent’s written submissions have been relied upon.

Findings

The bamboo

30. The bamboo is located wholly or in the majority on the Respondent’s property.

31. The bamboo is a vigorously growing type and is currently and will continue to grow to a height greater than 4 metres.

32. After review of the submissions and an inspection of the site myself, I am satisfied that the bamboo currently excessively shades the windows and skylights of the dwelling at the rear of 160 Central Road. Orders for removal of the bamboo will be made. Orders will be made to ensure that any replacement planting is limited in height to ensure that the potential for excessive shade in the future is avoided.

Apportionment of the cost of the works

33. The Court has jurisdiction to make orders that require the payment of costs associated with carrying out an order at s 14D. The removal of the bamboo benefits the Applicant alone and orders will be made to reflect this.

Orders

34. The orders of the Court are:

35. Within 60 days of the date of these orders, the Applicant is to engage and pay for a suitable contractor with all appropriate insurances, to carry out removal of the bamboo located on the shared property boundary at 162 and 160 Central Road, Avalon.

36. All works are to be completed within 120 days of the date of these orders.

37. The Respondent shall provide reasonable access to the property for a contractor to undertake works in order (1).

38. The work in order (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

39. Any replacement planting in this location is to be limited to plants with a height at maturity of 2.4 metres or less.

P Nichols

Acting Commissioner of the Court

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