Economos v Terrence

[2025] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation:

Economos v Terrence [2025] NSWLEC 1078

Hearing dates:

24 January 2025

Date of orders:

14 February 2025

Decision date:

14 February 2025

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The Court orders:

(1) The application is granted.

(2) Prune and maintain the bamboo hedge growing inside the respondent’s eastern boundary to a height level with 5 metres above ground level (or 3.5 metres above the existing Colorbond fence). This hedge height is to be uniform along the eastern property boundary following the natural slope of the land. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn.

(3) All pruning works shall comply with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

(4) The respondent is responsible for undertaking these works.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14E, 14F, Pt 2A

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

AS 4373-2007 - Pruning of Amenity Trees, 2007

WorkCover NSW Code of Practice for the Amenity Tree Industry, 1998

Category:

Principal judgment

Parties:

Peter Economos (Applicant)
James Terrence (Respondent)

Representation:

Peter Economos (Applicant)
James Terrence (Respondent)

File Number(s):

2024/367566

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Mr Economos of 40 Porter Avenue Mount Warrigal, submitted an application, pursuant to s 14B of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2. Mr Economos has occupied the property since approximately 2011. The property contains a rear elevated deck with views generally to the north across Lake Illawarra. Views are also present from the elevated deck to the west and east, across the lake and district across side boundaries.

3. Mr Terrence owns the property to the west of the applicant at 42 Porter Ave Mount Warrigal. During 2024 the respondent Mr Terrence planted clumping bamboo adjacent and parallel to the eastern rear boundary shared with the applicant, to provide privacy to their property from the elevated deck of the applicant’s dwelling. Photographs, taken around this time, submitted by the applicant, display views of the lake to the east, and north-east. Mr Terrence contends maintaining the height of the bamboo hedge is necessary for the maintenance of privacy.

4. The applicant contends that the bamboo growing on the respondent's property (42 Porter Avenue Mount Warrigal) near the boundary block the views and will soon further block the views to a severe degree if not maintained adequately. The height of the bamboo hedge is currently being maintained by pruning by the respondent at generally 4.5 metres above ground level.

5. The existing Colorbond fence between the properties stands at 1.5 metres.

6. In their application under Part 2A, Mr Economos seeks orders to trim and maintain bamboo hedge to an acceptable height to reinstate the views they used to enjoy before the bamboo hedge was planted.

The hearing

7. The hearing commenced with an inspection of Mrs Terrence’s rear yard. At the eastern boundary of the rear yard the bamboo was located in a garden bed adjacent to the shared property boundary. Being a relatively recently planted hedge the growth of all bamboo clumps was generally even and reached a height of approximately 4.5 m above ground level.

8. The hedge was then viewed from the applicant’s property and in particular the rear elevated deck. Mr Terrence emphasised the desire to retain the existing hedge for privacy and strongly resisted it being pruned lower than the existing height. To the west and north, there are lake and district views.

9. Viewed from the applicants’ deck, the bamboo hedge partially blocked views to the west, across to the lake. Options for pruning, which provided for both views and privacy, were explored with both parties.

10. The Court assembled in the respondent’s rear yard for submissions. The applicant was self-represented while Mr Terrence was represented by his daughter, acting as his agent.

Jurisdictional requirements – Part 2A

11. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22].

Do the trees form a hedge?

12. The first test is s 14A(1), that is, is the bamboo planted along the eastern boundary of the respondent’s rear yard, a hedge for the purpose of the Act?

13. Section 14A(1) states:

(1) This Part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

14. As bamboo is prescribed in the Trees (Disputes between Neighbours) Regulation 2007 as a 'tree' for the purpose of the Act, and this hedge, planted in 2014, now reaches about 4.5 m in height, s 14A(1) is satisfied. The bamboo continues to grow vigorously and increase in height.

15. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.

16. Section 14E(2)(a)(ii) states:

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

…

(ii) are severely obstructing a view from a dwelling situated on the applicant's land.

17. The applicants’ residence is upslope from that of the respondent. Both dwellings have rear living areas are designed to capitalise on views towards the lake to the north.

18. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and this case was referenced by Mr Economos in his submission.

19. The first three steps of the four-step process are considered relevant to Part 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained – views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected – the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe, or devastating.

20. In applying those principles to the hedge, the view in contention spans approximately 45 degrees of lake water.

21. Considering the third step of Tenacity, the extent of the impact for the whole of the property is severe. The views from the rear living area and the adjacent deck, which is included as a living area under the Act, are blocked by Mr Terrence’s bamboo hedge. This will very soon be exacerbated through the vigorous growth of the bamboo.

22. Though the Court sets a high bar when considering the word 'severe', I am satisfied the trees that form the hedge are severely obstructing a view from a dwelling situated on the applicants land, and the Act is therefore engaged (s 14E(2)(a)(ii)).

23. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

24. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

1. The hedge is located in the respondent’s property parallel to and close to their eastern boundary.

2. The trees were planted approximately 1-1.5 years ago.

3. The trees have grown to their current height of four-five metres since that time.

4. The trees are not protected by Council’s Tree Management Controls under its Development Control Plan.

5. The bamboo is likely to make a minor contribution to biodiversity.

6. The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity.

7. The bamboo plants can normally be regularly pruned without unduly affecting their health or function. Pruning may result in thicker growth, and thus enhance the hedge’s utility for the respondents.

8. Being higher up the hill, and on the upper level, the applicants’ veranda and rear living area overlooks the respondent’s rear yard, and the hedge contributes significantly to providing privacy for the respondent.

9. The bamboo is currently being pruned by the respondent. The pruning arrangements remain in contention, particularly as to the maintenance of a maximum height of the bamboo hedge so as not to impact views of the applicant.

10. The bamboo is evergreen.

11. The lake water view across the western side boundary of the applicant’s property is and will be severely affected by growth of the bamboo.

12. The obstructed view is from a living room and rear elevated deck, and the view is severely restricted by the hedge without regular pruning.

25. In summary, pruning of the hedge will be ordered so the lake views are retained for the applicant (to a height of 5 metres above ground level), while retaining most of the hedge’s benefits of privacy and landscape amenity for Mr Terrence. This will result in little loss of amenity for the respondent, and significant benefit for the applicants.

Discretionary matters – s 12

26. In making an order, the Court considers relevant matters in s 12 of the Act. Factors already considered in s 14F will not be duplicated.

(b2) Bamboo plants can normally be regularly pruned to maintain height without noticeable impact on their health and function. Bushier growth normally develops on the stems below the pruning cuts, potentially enhancing the respondent’s privacy.

(b3) The trees contribute significantly to providing privacy for the respondent, particularly in the rear yard, and upstairs veranda. They also add to garden design and the amenity value of the garden.

(c) There is nothing other than the bamboo that is likely in the near future to cause damage to the applicants’ property. Tension between the parties has led to reluctance by the respondent with respect to pruning the vigorous growth of the long culms to a height acceptable to the applicant. Both parties are seeking orders to resolve the dispute over the ultimate height of the bamboo hedge.

Conclusion

27. Though the impact to views may seem currently not severe, it is likely to significantly worsen in the near future unless regular pruning of the hedge is not undertaken. The benefits the hedge provides will not be much affected, as long as a pruning program is employed which maintains the screening benefit the hedge provides for the respondent, while maintaining a maximum height to maintain views from the applicant’s property.

28. When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention in this case.

Orders

29. The orders of the Court are:

1. The application is granted.

2. Prune and maintain the bamboo hedge growing inside the respondent’s eastern boundary to a height level with 5 metres above ground level (or 3.5 metres above the existing Colorbond fence). This hedge height is to be uniform along the eastern property boundary following the natural slope of the land. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn.

3. All pruning works shall comply with the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

4. The respondent is responsible for undertaking these works.

P Nichols

Acting Commissioner of the Court

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Decision last updated: 17 February 2025