Australia, July 7 -- New South Wales Land and Environment Court issued text of the following judgement on June 6:

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.

1) Is there a severe obstruction of sunlight caused by the bamboo hedge?

2) 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.

8. 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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197381929bead530452f8344)

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