Holland v Bell

[2017] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation:	Holland v Bell [2017] NSWLEC 1322
Hearing dates:	8 June 2017
Date of orders:	08 June 2017
Decision date:	08 June 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 19.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); bamboo; hedge; severe obstruction of views; privacy; orders for pruning.
Legislation Cited:	Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Category:	Principal judgment
Parties:	Mark Holland (Applicant) Douglas Bell (Respondent)
Representation:	Mr John Weaver, Barrister (Applicant) Mullick and Associates, Solicitors (Applicant) Mr Douglas Bell, Litigant in Person (Respondent)
File Number(s):	62244 of 2017

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Around 15 years ago Mr Bell (‘the respondent’) planted a row of bamboo along a boundary of his Kareela property, to gain some privacy by creating screening between his dwelling and the upslope dwellings to his south. He says the bamboo grew quickly to its full height, well above 5 metres.

2. Mr and Mrs Holland purchased a neighbouring property to Mr Bell’s south in 2012. Promotional material for the property’s sale included photographs taken from the dwelling’s deck and living area showing water views to the east of Mr Bell’s dwelling, and sky and tree views above his dwelling. Water views were highly valued by the Hollands. Mr Bell alleges that these views were available at that moment only because the vendors of the Hollands’ property had, without his permission, cut the bamboo prior to the sale of their property.

3. The Hollands lived overseas for a few years, during which time the bamboo quickly regrew, but in 2015 tried to reach agreement with Mr Bell regarding cutting of the bamboo to regain their views. Both parties presented to the Court documents and submissions regarding the nature and outcome of these communications, largely irrelevant to the Court, but I am satisfied that the applicant has tried to reach agreement with the respondent as required by s 14E(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.

4. Mr Holland (‘the applicant’) has applied to the Court, pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the respondent to cut the bamboo to a height of 50 cm above the top of the boundary fence, and to maintain it at a height of 50-60 cm above the top of the fence. The Hollands say this will restore the view that was previously available and maintain much of Mr Bell’s privacy.

5. Mr Bell says that his dwelling and other trees on his property and in the adjacent reserve obstruct most of the view from the Hollands’ dwelling, but accepts there may be a small view corridor, perhaps two metres wide, to the east of his dwelling. He contends that no pruning would restore the Hollands’ views, but if any pruning is to be done it should be limited to that narrow section. He is concerned about the impact of any pruning on his privacy, saying the Hollands and their neighbours would get views into his bedroom, en suite, bathroom, kitchen and deck. He is also concerned about the impact of pruning on the health of the bamboo.

Jurisdictional framework

6. Before I can make the orders that the applicant seeks, or any other orders, I must first be satisfied that “the trees concerned are severely obstructing a view from a dwelling situated on the applicant’s land” (s 14E(2)(a)(ii) of the Trees Act). I must also balance the applicant’s interests in restoring the view against the respondent’s interests of privacy and the ongoing health of the bamboo (s 14E(2)(b)).

Onsite hearing

7. The onsite hearing allowed observations from within both properties of: the views, the level of obstruction caused by bamboo and other features, privacy issues and the bamboo itself. Having observed the situation, I find the following.

8. The applicant’s view includes not only water, but also the natural landscape of trees and other vegetation, as well as sky.

9. The bamboo is perhaps 6–8 m from the applicant’s dwelling and obstructs the view just described.

10. Other trees in the reserve may partially obstruct water views, but importantly those trees are further from the Hollands’ dwelling and are also part of the view of the natural landscape. They also allow filtered water views through their canopies, which cannot be said for the bamboo.

11. Photos show that, at the time the Hollands purchased their property, the bamboo was at approximately the same height for which they seek pruning orders. This may have resulted from unapproved pruning by the vendors, but was not a result of any action by the Hollands.

The hedge severely obstructs a view

12. The Interpretation Act 1987 permits me to refer to relevant material to assist in interpreting the Trees Act. Here I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (‘the Review’) for assistance with interpreting “severely obstructing a view” (s 14E(2)(a)(ii)).

13. On page 39 the Review describes the Trees Act’s scope (with my emphasis):

The Court would only have the power to hear matters regarding:

· hedges which are both high, and similar to a wall in their visual effect.

· hedges which affect people’s homes (rather than their gardens or other structures on their property).

· cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if ‘enjoyment of property has been severely affected by a neighbour’s trees blocking out sunlight’ or ‘enjoyment of property has been severely affected by a neighbour’s trees blocking out a view’.

· cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase.

· hedges which are directly next door (not one or two properties over).

14. The bamboo, which is directly next door, creates a tall dense screen, similar to a wall in its effect. It severely affects views from the Hollands’ dwelling and severely affects enjoyment of their property. The views now obstructed were available to the Hollands at the time they purchased their property.

15. I am therefore satisfied that the bamboo hedge enlivens the Court’s jurisdiction at s 14E(2)(a)(ii).

Balance of relevant matters

16. Pruning the bamboo could remove the sense of a screen and restore views of the natural landscape, even if those views have changed since 2012 with the growth of more distant trees.

17. Mr Bell’s privacy could be retained with some pruning of the bamboo. A short 2–metre section at the western end screens his bedroom from other neighbours. From there to the corner of the pool fence on the boundary the bamboo screens the dwelling, but only needs to be a metre above the fence to achieve this. To the east of his dwelling the bamboo contributes very little to privacy.

18. Pruning the bamboo may indeed impact its heath, but as the applicant has opined, the bamboo was cut back in 2012 but quickly regrew to provide a healthy dense screen again.

Orders

19. Balancing the desires for privacy and views, I make the following orders. For the purpose of these orders, the yellow arrow in the photograph below indicates the point referred to as the ‘top of the fence’, and the vertical yellow dashed line near the palm trees indicates the ‘fence corner’.

1. The application is upheld.

2. Within 30 days of the date of these orders the respondent is to prune the bamboo along his southern boundary so that it is no taller than:

1. 2 metres above the top of the fence for the 2–metre section from its western end;

2. 1 metre above the top of the fence for the section from (2)(a) (above) to the corner of the fence;

3. 500 mm above the top of the fence for the section from the corner of the fence to the eastern end of the hedge.

3. The respondent is then to carry out all pruning in order (2) annually, within one month of the anniversary of the date of these orders.

4. On reasonable notice the applicant is to allow any access required during reasonable hours to carry out the pruning works described above.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 04 May 2018