Wilkinson v Klemenc

Cases Cited: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus [2012] NSWLEC 192
Tooth v McCombie [2011] NSWLEC 1004
Van Hoorn v Sullivan & anor [2013] NSWLEC 1111

Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Second Reading Speech, NSW Legislative Council,18 May 2010

Category: Principal judgment

Parties: Paul Wilkinson (Self represented) (Applicant)
Amanda Keevers-Wilkinson (Self represented) (Applicant)
Peter Klemenc (Self represented) (Respondent)
Lisa Klemenc (Self represented) (Respondent)

Representation: P Wilkinson (Self represented) (Applicant)
A Keevers-Wilkinson (Self represented) (Applicant)
L Klemenc (Self represented) (Respondent)

File Number(s): 2025/89084

Publication restriction: Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: The Wilkinson’s (the Applicants) 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 Klemencs (the Respondents) to prune the bamboo hedge located between the properties. The bamboo is close to the Respondent’s side boundary of the rear yard of 6 Tweed Street Brunswick Heads. The Applicants own 8 Tweed Street Brunswick Heads, and share a side boundary with the Respondent.

2. The Respondents enjoy the privacy and amenity the bamboo provides for their rear yard and seek to maintain the bamboo in its current state. The bamboo is mature and has reached a height of approximately 8-9 metres. The Respondents maintain the bamboo by way of thinning of the spears regularly throughout the year.

3. The Applicants are concerned about the amount of sunlight reaching the rear of their dwelling and the side rear yard (driveway) 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.

4. The Applicants also submit that the shade cast by the bamboo caused deterioration of the elevated timber deck, causing rotting to occur and submit a claim for the Respondents to pay costs to repair the dilapidated parts of the deck including the hand rail and decking. The deck has already been repaired and paid for by the Applicants.

5. The application is made pursuant to s 7 Part 2 of the Trees Act.

Framework of the Act

6. Within the Act are several jurisdictional tests that must be satisfied before the Court can make orders, and a range of discretionary matters that must be considered if orders are to be made.

7. In applications under Part 2 of the Trees 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. No evidence was adduced during the hearing that leads me to conclude that the bamboo has caused damage or injury, therefore this test is not met.

8. 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 Trees Act (s 3). On these matters the parties are agreed.

9. If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit under s 9 of the Act is engaged.

10. The remaining issues to be determined are as follows:

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

12. 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.

13. Did the shade cast by the bamboo hedge cause the dilapidation of the elevated rear deck of the Applicant’s dwelling.

14. 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.

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

16. The bamboo is located to the north of the Applicants property and, I observed during the onsite hearing, does cast shade during some parts of the day. However, there is other vegetation located to the north on other properties that would still cast some shade onto the Applicants rear yard even if the bamboo was pruned or removed.

17. The bamboo hedge was planted on the Respondent’s property and was at it’s current height prior to the Wilkinson’s purchase of 8 Tweed Street.

18. The Klemencs submitted 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 would diminish these attributes.

19. 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, vegetation and buildings, the bamboo hedge added to the loss of sunshine by approximately 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. During the onsite hearing I observed full shade was cast onto approximately 90% of the elevated timber deck floor and approximately 0.5 metres into the rooms. However, dappled sunlight was still observed on the floor in the affected bedrooms. The main living areas of the dwelling remained unaffected by shade cast by the bamboo hedge.

20. The part of the dwelling affected by shade includes two bedrooms and an elevated, north facing timber deck.

Is there a severe obstruction of sunlight?

13. The application includes shade cast by 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 Wilkinson’s elevated timber deck, 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.

Repair of the elevated timber deck

14. The submission by the Applicant regarding the damage to the timber deck included a short letter completed by Aaron Diehm Building dated 10 February 2025 which provided an opinion regarding the ‘damaged side deck’. The submission lacked detail and provided no genuine evidence attributing the deterioration of the deck solely to the shade cast by the bamboo hedge. No other submissions were made regarding the damage to the deck. No evidence has been adduced that clearly attributes the shade caused by the bamboo hedge to deterioration of the deck (now repaired), therefore, no orders for costs can be made.

Discretionary matters

15. 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.

16. I can see nothing at s 14B of the Trees Act to prevent 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 at 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.”

17. 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 bedrooms and elevated deck, I would be required to consider the matters at s 14F before making any orders, including s 14F(m): "anything, other than the trees, that has contributed, or is contributing, to the obstruction".

18. To sufficiently restore sunlight, the bamboo and additional vegetation located on other properties to the north would need to be pruned or removed. These trees are 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).

Conclusion

19. Only the bamboo is planted so as to form a hedge. Considering the overall view from each window and the elevated timber deck, 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.

20. There is nothing to prevent the parties reaching an agreement over pruning the height of the hedge, which may to address most of the Wilkinson’s concerns while maintaining the benefits of the bamboo for the Klemenc’s.

21. As a result of the above, the application to prune the bamboo hedge is dismissed.

22. No evidence has been adduced that clearly attributes the shade caused by the bamboo hedge to deterioration of the deck (now repaired), therefore, no orders for compensation will be made.

Orders

23. The Orders of the Court are:

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

25. The application for compensation for repairs to the elevated rear timber deck is dismissed.

P Nichols

Acting Commissioner of the Court

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