Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 1:

1. COMMISSIONER: Mr and Mrs Mallios (the 'Applicants') applied to the Court, pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the 'Act'), seeking orders for the Respondents to remove the bamboo hedge located between the properties. The hedge is located close to the Respondents' side boundary of 7 Borgah Street, Carss Park. The Applicants own 5 Borgah Street, Carss Park, and share a side boundary with the Respondents' side boundary.

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

3. The Nicholls (the 'Respondents') enjoy the privacy and amenity benefits the bamboo hedge provides (particularly to the rear yard where there is a spa pool) and seek 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 Applicants are also concerned about the physical damage the bamboo hedge has caused (and will potentially continue to cause) to their dwelling, including damage to the antennae dish (reduced efficacy) used for internet connection and television reception, and the flyscreen on the second floor rear window. The Applicants are also concerned about excessive noise made by the bamboo culms (stems) during periods of high winds.

5. Oral expert evidence was given during the hearing by a telecommunications expert Mr Christodoulou. Oral evidence was given by Mr Mallios during the hearing. Otherwise, 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 Pt 2A of the Act.

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

8. The trees are planted along the shared property boundary. The parties agree that the trees have been planted as a hedge and rise to more than 2.5 metres in height and I am satisfied the jurisdictional tests have been met 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:

1) Is there a severe obstruction of sunlight to the window and door caused by the hedge?

2) If so, does the Applicants' 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.

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

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19859aab309933a5c8a59fb2)

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