Australia, Jan. 31 -- New South Wales Land and Environment Court issued text of the following judgement on Jan. 6:
This decision was given as an ex temporaneous decision. It has been revised and edited prior to publication.
Background
1. COMMISSIONER: Sandra and John Walker (the applicants) and Brad Newling (the respondent) own neighbouring residential properties in Charlestown. The Walkers' rent out their property; Mr Newling lives at his property with his mother. From the outset of these proceedings, it was clear that the relationship between the parties has been hostile for some time, with disputes ranging across several issues. These proceedings deal only with the dispute around a bamboo hedge on Mr Newling's property. The Walkers claim the hedge obstructs sunlight to windows of their dwelling and seek orders for its removal.
2. The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. The parties were self-represented.
The trees
3. Several years ago, Mr Newling planted a row of slender weavers bamboo (Bambusa textilis var. gracilis) in the narrow bed between his driveway and the dividing fence on the common boundary shared with the Walkers. The bamboo forms a continuous screen for 20-25 metres along the boundary and reaches a height of up to 7 metres.
Framework for this decision
4. The Walkers have applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Trees covered by the Trees Act include bamboo. The bamboo is planted to form a hedge and is more than 2.5 metres tall, so Pt 2A of the Trees Act applies to the bamboo: s 14A(1). The orders sought are orders the Court can make pursuant to s 14D of the Trees Act.
5. Before making orders in these proceedings, I must be satisfied that:
* The Walkers made a reasonable effort to reach agreement with Mr Newling: s 14E(1)(a);
* The trees severely obstruct sunlight to windows of the Walkers' dwelling: s 14E(2)(a)(i);
* The severity and nature of the sunlight obstruction outweigh reasons to avoid interfering with the trees: s 14E(2)(b).
Reasonable effort to reach agreement
6. The parties reached an earlier agreement around other issues through mediation at the Community Justice Centres (CJC). The Walkers wrote to Mr Newling in June 2024 bringing their complaints about the bamboo to his attention. Mr Newling submitted that the CJC would not provide further mediation services to resolve the bamboo dispute after the failure of the earlier agreement. Communications between the parties during the hearing indicated to me that they have little hope of resolving issues between themselves. As it is unlikely that any further effort by the Walkers would end in an agreement, rather than simply escalating the dispute further, I am satisfied that they made a reasonable effort to reach agreement.
The trees severely obstruct sunlight
7. The Walkers' dwelling is separated from the common boundary to the east by only a narrow path. The bamboo grows against and along the dividing fence, reaching above and over the Walkers' roof. It forms a relatively dense screen that fills the vertical distance between the top of the dividing fence and the Walkers' eaves. Although Mr Newling provided photographs showing some sunlight on a window, and submitted that sunlight can pass through the bamboo, it was plain from my own observations that the bamboo obstructs most of the morning sunlight that would otherwise reach windows on the eastern side of the Walkers' dwelling. The three affected windows are bedroom windows - the Walkers did not press the issue of sunlight obstruction to their garage window. As a result, these three bedrooms receive almost no direct sunlight. In the absence of the bamboo, they would receive generous amount of sunlight during the morning throughout the year. I find this is a severe obstruction of sunlight.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1946cb632d947976170bc852)
Disclaimer: Curated by HT Syndication.
