Australia, June 12 -- New South Wales Land and Environment Court issued text of the following judgement on May 13:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196acfef7cdab1131086a7fa)

Disclaimer: Curated by HT Syndication.