Guinea & Strugar v Buckley

[2022] NSWLEC 1704

Land and Environment Court

New South Wales

Medium Neutral Citation:

Guinea & Strugar v Buckley [2022] NSWLEC 1704

Hearing dates:

12 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Class 2

Before:

Horton C

Decision:

See orders at [78]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – bamboo hedge – whether severely obstructs sunlight – whether severely obstructs views - orders

Legislation Cited:

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

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Land and Environment Court Act 1979, s 22

Category:

Principal judgment

Parties:

Ana Guinea (First Applicant)
Tomi Strugar (Second Applicant)
Andrew Buckley (First Respondent)
Natalie Buckley (Second Respondent)

Representation:

Counsel:
A Guinea (Self-represented) (First Applicant)
T Strugar (Self-represented) (Second Applicant)
M Lewis (Solicitor) (Respondents)

Solicitors:
Ardent Lawyers (Respondents)

File Number(s):

2022/303179

Publication restriction:

No

Judgment

1. COMMISSIONER: Two properties in Niger Street, Vincentia, share a common boundary, along which a hedge of bamboo was planted, that has now grown to a height that the Applicants in these proceedings, Ms Ana Guinea and Mr Tomi Strugar, assert obstructs sunlight to certain rooms, and also obstructs western district and mountain views.

2. It is commonly held that the bamboo hedge between the dwellings was first planted in 2019, around the time that the Respondents, Ms Natalie and Mr Andrew Buckley, completed the construction of a two-storey dwelling on their site at 38 Niger Street.

3. A second crop of bamboo was then planted sometime in 2021, which is generally along the shared boundary in the rear yards.

4. In an affidavit, with annexures, prepared by Ms Buckley dated 7 December (Exhibit 1), it is asserted that the origins of the hedge lie in the Applicants’ request for privacy between the properties.

5. The Respondent’s submit evidence of invoices to the effect that the hedge is regularly maintained by Saltwater Gardens to a height of 4.5m.

6. However, the Applicants state the bamboo also strikes their dwelling in high winds, in the vicinity of their bedroom, has damaged the colorbond fence between the properties, obstructs sunlight to certain windows and obstructs distant views, and growth of the bamboo results in sheathing that demands time and cost to remove the detritus that falls on the Applicant’s side of the boundary fence.

7. The Applicants now apply to the Court under s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), in the Class 2 division of the Court’s jurisdiction, seeking orders for the bamboo to removed, or pruned and maintained at a height that would remedy the obstruction of sunlight and views.

8. The hearing took place on site, and the parties appeared in person. The Court, in the company of the parties, was taken to the rear yard of both properties, and into certain rooms of the dwellings.

Framework for this decision

9. The Trees Act requires the Court to consider several jurisdictional pre-conditions before making orders. These include:

1. The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5m (s 14A(1));

2. The applicant must make reasonable effort to reach agreement with the tree owners (s 14E(1));

3. The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

4. The obstruction is such that the Applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, those matters set out at s 14F must be considered by the Court.

10. If these tests are satisfied the Court can make orders pursuant to s 14D to remedy, restrain or prevent a severe obstruction of sunlight to, or a view from, the Applicant’s dwelling.

The bamboo is planted so as to form a hedge

11. Bamboo is a tree for the purposes of the Trees Act, according to the definition at cl 4 of the Trees (Disputes Between Neighbours) Regulation 2019.

12. As stated, the bamboo is planted in a reasonably continuous manner along the shared boundary, and is at least 2.5m along its entire length.

13. As the extent and height of the bamboo is at the heart of this dispute, I note here that the parties agree that past maintenance has been carried out to trim the bamboo, although the frequency is disputed. However, the Respondents acknowledge that recent adverse weather has prevented maintenance being carried out with its usual, or intended, frequency.

The Applicant made reasonable efforts

14. The Applicant’s submit dates on which contact was initiated with the Respondents, between 9 April and 30 August 2022, seeking the trimming of the bamboo (Exhibit D).

15. The Respondent also provides examples of contact via text message on a number of occasions in June 2022 (Exhibit 1, Annexure J).

16. This history demonstrates to me that the Applicant’s made reasonable efforts to reach an agreement with the Respondents, and I am also satisfied that the Applicant has given notice of the application in accordance with section 14C of the Trees Act.

Whether the trees severely obstruct sunlight

17. The Applicants submit that the bamboo blocks sunlight to two west-facing windows, identified in the Tree Dispute Claim detail (Exhibit A) as Windows W1 and W2, providing daylighting to a bedroom, and a study.

18. The study also has a window facing north, identified as W3.

19. The Respondent’s rely upon shadow diagrams, prepared by Chris Clout Design (Exhibit 1, Annexure G) that it says show minimal impact on the Applicant’s property, estimated to extend to “one tenth of the property for approximately fewer than 2-3 hours a day at a decreasing rate (due to the sun setting)”.

20. According to the Respondents, this impact must also be understood in the context of a development application lodged by the Applicants with the Council for a secondary dwelling proposed on the north west corner of the Applicant’s site. This secondary dwelling is proposed to be located close to the shared boundary. The built form envelope proposed will overshadow the north facing W3, and present such a height to the Respondent’s private open space, that the bamboo is necessary to provide screening for privacy.

21. It is also relevant to record here that the Applicant cites the scale of the two-storey dwelling constructed by the Respondent’s as contributing to the removal of significant amount of sunlight from windows in the rooms on the ground floor.

22. That said, the Applicant’s assert that the height of the bamboo between the dwellings also reduces an amount of daylight by obstructing a portion of sky from which ambient light is permitted in to ground level rooms through W1 and W2.

23. In considering whether the bamboo hedge severely obstructs sunlight, it is now necessary to turn attention to the shadow diagrams at [19], prepared on behalf of the Respondent. This is because the shadow diagrams are said not to depict the outcome Mr Buckley prefers, but the existing condition. The existing condition is also said to be shown on the first page of the work completed by Chris Clout Design (Exhibit 1, Annexure G). However, for reasons I will set out, the shadow diagrams prepared by Chris Clout Design do not depict the existing condition.

24. Mr Buckley’s preferred outcome is for the height of the bamboo hedge along the full length of the Respondent’s eastern boundary to be no less than 4.5m in height, following the general fall of the land, sloping down to the north.

25. In a 3-dimensional isometric drawing, the draftsman preparing the shadow diagrams on behalf of the Respondent has helpfully illustrated what is the subject of the modelling. Bamboo is shown in two differing heights, of 4.5m between the dwellings, and 3m in height for bamboo north of the north eastern corner of the Buckley’s dwelling, in the vicinity of the master bedroom.

26. For completeness, the shadow diagrams also only depict a portion of the bamboo planted in 2021, stopping around halfway along the boundary.

27. This is the height and extent of the bamboo that has informed the shadows depicted on Drawing C7.0 of the Chris Clout Design shadow diagrams. But for reasons stated earlier, these shadow diagrams do not depict the existing condition. The bamboo has been allowed to grow taller than 3m north of the north eastern corner of the Buckley’s master bedroom.

28. In fact, it appears that the more mature, thickened bamboo planted in 2019 extends beyond the north eastern corner of the master bedroom by a distance of 3 or 4 fence panels. Expressed in other terms, this is a distance of not less than 6m, in my assessment, beyond that depicted in the Chris Clout Design shadow diagrams.

29. This means the Respondent relies on shadow diagrams that neither depict Mr Buckley’s preference, of 4.5m along the eastern boundary of the Respondent’s property, or of the impact of the bamboo hedge as it is today.

30. I also note the shadow diagrams prepared by Chris Clout Design, on behalf of the Respondents, do not identify the date on which the modelling is based. It is assumed to represent mid winter conditions, on 21 or 22 June. However, while this is asserted, it is unable to be verified.

31. Likewise, it must be said that shadow diagrams prepared by Mr Strugar (Exhibit D, Dwg DA10) in support of the development application for the secondary dwelling on the Applicant’s property, do not show the shadow cast by bamboo or the fence on the western side of their property.

32. However, I accept Mr Strugar’s submission that the prospective shadow cast by the secondary dwelling, which is the north of W3, has been designed to cast a shadow on the land only, and not on W3.

33. I accept this because close inspection of the shadow diagram on DA10 reveals a portion of the shadow cast does not quite intersect with the northern wall of the study in which W3 is located, and so I am satisfied that the shadow would not continue up the vertical external face of the northern wall of the study to impact W3.

34. However, the shadow diagram prepared for the Respondent, showing shadows at 3pm, does depict a shadow cast on W2 and W3. However, as stated earlier, this shadow results from a bamboo hedge depicted at 3m in height, and not 4.5m as Mr Buckley prefers.

35. The shadow cast by a bamboo hedge at 3m in height severely obstructs sunlight to W2. I note here that whether the bamboo hedge also casts a shadow on W1 is irrelevant, in my view, because it is overshadowed by the Buckley’s dwelling at that time of day in any event.

36. While I find sunlight to W2 is severely obstructed, I also note the study enjoys a second window facing north. It receives direct sunlight throughout the day, until the impact depicted in the shadow diagrams at 3pm. Again, the shadow is cast by a 3m bamboo hedge. In the circumstances, notwithstanding the severe obstruction of sunlight from W2 in the study, I consider the study to receive sufficient sunlight due to its northern exposure via W3.

37. The Court is unable to assess the impact of overshadowing by a hedge that is 4.5m in height beyond the north-eastern corner of the Buckley’s master bedroom. But undoubtedly it would be a greater impact, and would likely fully obstruct sunlight from W3 at 3pm.

38. While a hedge that is 3m in height beyond the north-eastern corner of the Buckley’s master bedroom imposes overshadowing of a kind I consider acceptable, the parties jointly raise the matter of visual privacy.

Whether the trees severely obstruct a view

39. The Applicants submit that as the bamboo has grown and thickened, it has increasingly blocked views to distant hills and the wider district. These views extend in an arc or panorama from the north east, to the north west and west of the Applicant’s property.

40. The Court was taken to the master bedroom, living area and external deck on level 1 of the Applicant’s property and observed the view from both a seated and standing position. The Applicants now believe the views are impeded by the growth in the bamboo.

41. The Respondent’s provide images also depicting water views to the north east enjoyed from the Applicant’s property, and unimpeded by bamboo, which the Court also witnessed on site.

42. In reply to the concerns expressed by the Applicant as to views, the Respondent’s are concerned at the potential for a sightline from the prospective front door from the secondary dwelling in the Applicant’s property, to the Master bedroom on level 1, and a child’s bedroom on the ground floor.

43. It is my view that the Applicant’s enjoy such a panoramic view of distant mountains, the district and the waters of Jervis Bay that the growth in bamboo along the common boundary does not severely obstruct views.

44. However, for reasons I will now set out, I consider there to be grounds for the pruning of the bamboo hedge along the common boundary for reasons other than the preservation of views.

Conclusion

45. For the reasons set out at [34]-[35], I find the bamboo hedge north of the north-eastern corner of the Buckley’s master bedroom severely obstructs sunlight to W2, but that obstruction is mitigated, in my view, by the sunlight received by W3 if a hedge of 3m in height is assumed.

46. As stated at [6], the Applicant also asserts that the bamboo hedge is damaging the colorbond fence between the properties.

47. The Applicant provides photographic (Exhibit D, second last page) and video evidence (Exhibit B), objected to in part by the Respondents, in support of the claim that the bamboo is responsible for the damage.

48. The damage is at a panel joint high up on the colorbond fence. I consider the damage to be a plausible outcome that may be reasonably expected of the movement evident in the video. That is, a repeated pressing of bamboo against the upper level of the 1.5m high colorbond fence exerting force on a joint cantilevered above the restraint of the footing below.

49. While the Respondent objected to that inference being taken from the video, no alternative explanation for the damage was advanced by the Respondent. I accept that the movement of bamboo has caused damage to the Colorbond fence.

50. I also note here that the bamboo planted in 2021 is not of the same height as the bamboo planted in 2019. By virtue of age and maturity, the bamboo planted in 2019 is of a greater height in the order of 5m. Again, the extent of bamboo planted in 2019 is not that depicted in the Chris Clout Design isometric drawing, but, as stated, extends 3 or 4 fence panels north of the north east corner of the master bedroom on the Respondent’s site.

51. It is not claimed that the bamboo planted in 2019 between the two dwellings is the source of any damage, either to the house or to the fence. This may be because the bamboo between the dwellings is sheltered from winds, unlike the exposed conditions of the bamboo planted north of the north eastern corner of the master bedroom of the Buckley’s dwelling.

52. I consider the circumstances differ between bamboo planted between the dwellings, and that portion of bamboo north of the north-eastern corner of Buckley’s master bedroom. I consider it reasonable, therefore, that the Court’s approach to each should differ accordingly.

53. I record here the bamboo in the street frontage falls into another category altogether as there is no fence between the properties, and due to the address being to the south where sunlight is not a factor.

54. Given what I have already described about the exposed location of bamboo and the potential for the bamboo in that location to move in high winds, in contrast to the sheltered location of the bamboo planted between the dwellings, I consider it appropriate for orders to be made that bamboo planted between the dwellings to be pruned to a height of 4m above the land directly below that point of measurement on the Buckley’s side, and that the bamboo planted north of the north-eastern corner of the Buckley’s master bedroom that is subject to move in high winds, should be maintained at a lower height to reduce the lever action of the bamboo against the fence in high winds.

55. Beyond the north eastern corner of the Buckley’s master bedroom, I consider a height of 3m above the land on the Buckley’s side of the fence would provide a measure of safeguard to the parties against damage to the fence, while maintaining sufficient privacy between rear yards. This is also the height modelled by the Respondent’s shadow diagrams, beyond which the Court is unable to speculate as to the severity of obstruction, and for which the Respondent provides no evidence in support of its preference for greater height.

56. In considering the height of 4m to the bamboo planted between the dwellings, I have taken into account the view I had from the master bedroom through the side windows to W1 and W2 of the Applicant’s property.

57. It was my stated observation that the current hedge could be pruned by 1m in height on average and still provide privacy for W1 and W2 from overlooking from the master bedroom at Level 1, while enabling a greater level of daylight to W1 and W2.

58. So that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided, pursuant to s 22 of the Land and Environment Court Act 1979, I have also considered the prospective conflict that may arise from two views between properties.

59. The first view is the potential sightline between the front door of the secondary dwelling on the Applicant’s site, and the bedrooms denoted at [42].

60. The second view is between the external deck at Level 1 of the Applicant’s dwelling and Buckley’s private open space.

61. In my assessment, both views would be sufficiently filtered by permitting a transition in height between 4m and 3m, without compromising the integrity of the colorbond fence.

62. This is because the external deck on the Applicant’s property coincides with an external covered deck on the Respondent’s property that provides a degree of protection against wind. That protection can be expected to progressively diminish as the hedge extends north beyond the shelter afforded between the dwellings.

63. If the hedge is pruned to 4m between the dwellings, up to the north-eastern corner of the Buckley’s master bedroom, and is then pruned in a downward transition to a height of 3m at a point on the boundary that is parallel with the northern extent of the external deck at Level 1 on the Applicant’s property, an additional degree of privacy is afforded to both parties.

64. Beyond this, any further privacy is capable of being addressed by blinds or fixed privacy screen as is common in urban situations, and where I note a blind is currently fitted to the Buckley’s master bedroom that is more susceptible to a sightline than the ground floor bedroom below it.

65. I have also considered the matter of the fence and its location.

66. It is commonly held by the parties that the fence, when installed, was not positioned on the boundary due to there not being a detailed survey of the boundary at the time.

67. Mr Buckley tells me the fence at the rear is in the order of 100mm east of the true boundary and so is located on the land owned by the Applicants. Mr Buckley also tells me the survey shows the fence to the south, in the front setback, is 310mm to the west of the true boundary and so is on the land owned by the Buckley’s. This is consistent with the survey annexed to Exhibit 1 (Annexure K).

68. Mr Strugar tells me that the survey that accompanied the Applicant’s development application for the secondary dwelling shows the fence positioned around 160mm west of the true boundary around half way along its length.

69. As I understand it, this accords with the survey completed for the Buckley’s, and with the common position held between the parties as to the degree of error in the position of the fence with respect to the true boundary.

45. Returning to the relationship of the fence to the bamboo, it is my view that in the event the fence is relocated on the true boundary, it would not resolve the issue of damage, or potential future damage, by bamboo planted north of the Buckley’s master bedroom. In some parts the fence would move closer to the bamboo. In other places it would move further away from the bamboo but, to a reasonably minor extent.

46. But relocating the fence to align to the boundary would bring it closer to the location of the bamboo exposed to high winds, which for reasons I have stated is most likely to cause damage.

47. Conversely, the fence would move away from the bamboo planted between the dwelling which, also for reasons stated earlier, is sheltered, and so least likely to cause damage to the fence.

48. I am satisfied that 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, pursuant to s 14E(2)(b) of the Trees Act. In forming this opinion of satisfaction, I note the ease with which bamboo may be regularly pruned so as to form a hedge affording privacy.

49. In considering what, if any orders, the Court should make, I have considered those matters to be considered at s 14F of the Trees Act.

50. The Respondent’s submit that the Court should not make orders as to maintenance, but instead rely upon a schedule of maintenance to be completed on a regular basis by the contractor identified at [5].

51. The Applicant’s accept that maintenance of the bamboo requires access to their property, which I understand would be facilitated by the Applicant’s.

52. Although the Respondents state that they are willing to maintain the bamboo at a certain height on a regular basis, the Court has often observed that bamboo grows so quickly that to maintain it at a certain height while pruning it no lower would require the pruning at short intervals. I find it would be a reasonable outcome, striking a balance between sunlight and privacy for the parties, for the hedge to be pruned on a quarterly basis to 4m in height, where between the dwellings, and a transition down to 3m in height north of the north-eastern corner of the Buckley’s master bedroom. Obviously, some regrowth can be expected between pruning events, however a forward schedule of maintenance every 3 months should regulate the extent of regrowth between pruning events.

Orders

78. The Court orders that:

1. The application is granted to the extent of the orders below.

2. The Respondents are to engage a suitably qualified and insured landscape contractor or arborist to prune, at intervals of no more than 3 months, the bamboo hedge to the common boundary of the properties so that:

1. Between the Niger street frontage and a point on the boundary parallel to the north-eastern corner of the master bedroom of the dwelling at No 38 Niger Street, the bamboo is to be pruned to a height of 4 metres above the level of the ground immediately below the point of measurement on the Respondent’s land; and, 

2. Between that point at order (2)(a), and a point on the boundary parallel to the northern extent of the external deck at Level 1 of the dwelling at No 36 Niger Street, the hedge is to be pruned in a downward transition from a height of 4m to a height of 3m above the level of the ground immediately below the point of measurement on the Respondent’s land.

3. Northward of that point at order (2)(b), to the rear of the property, the bamboo is to be no more than 3 metres above the level of the ground immediately below the point of measurement.

4. All bamboo overhanging the applicant’s boundary is pruned back to the boundary line. The works are to include the removal from the Applicant’s property of all debris resulting from the pruning.

3. The Applicant is not to unreasonably refuse entry to the property at No 36 for the landscape contractor or arborist for the works described in order (2), during daylight hours.

4. The Respondents are to give the Applicants at least 3 days’ notice of each pruning event in order (2).

5. All exhibits are returned, but for Exhibit A.

T Horton

Commissioner of the Court

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Decision last updated: 16 December 2022