Hough v Rettenmaier - [2010] NSWLEC 1354

Land and Environment Court

of New South Wales

CITATION: Hough & anor v Rettenmaier & anor [2010] NSWLEC 1354

PARTIES:
APPLICANTS
N & D Hough
RESPONDENTS
P Rettenmaier & K Greig

FILE NUMBER(S): 20639 of 2010

CORAM: Moore SC - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Impact on views; hedge of bamboo

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007

DATES OF HEARING: 13 October 2010

EX TEMPORE JUDGMENT DATE: 13 October 2010

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
HEWETT AC

13 October 2010

10/20639 Hough & anor v Rettenmaier & anor

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

1 SENIOR COMMISSIONER: These proceedings are the first proceedings heard and determined by the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Part 2A came into effect from 2 August 2010 and permits the Court to deal with applications concerning high hedges that obscure sunlight or views.

2 There are a variety of jurisdictional prerequisites that the Court must consider and about which the Court must be satisfied prior to its jurisdiction being enlivened under Part 2A. We propose to step through each of those jurisdictional prerequisites and indicate how we are satisfied that they are met, in these proceedings, to the extent that they are so met.

3 The first provision that is relevant is that which arises under s 14A(1) of the Trees Act. It requires that four elements be satisfied. The first is that the plants that are involved are trees. In these proceedings, the plants that are involved forming the hedge that is the subject of the application are bamboo, which is a plant that in botanical terms is a grass. However, as a consequence of cl 4 of the Trees (Disputes Between Neighbours) Regulation 2007 bamboo is proscribed as being a tree for the purposes of the definition of "tree" in s 3(1) of the Trees Act. As a consequence we are satisfied that that element of s 3 is as satisfied.

4 During the course of the site inspection, this morning, we inquired of the respondents whether or not the clumps of bamboo that we observed at the rear of their property had been planted or had been as an extensive suckered screen derived from a single bamboo rhizome. We were advised that the bamboo had been planted in clumps. That satisfies two further of the elements contained in s 14A(1) namely, that there are two or more trees and, second, that they have been planted. There is no doubt from the photographs later in this decision that they have had the effect of forming a hedge across the rear of the respondents’ property.

5 There is also, equally no doubt (on the basis of measurements taken by us this morning and provided to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hough v Rettenmaier

Details

AGLC: Hough v Rettenmaier [2010] NSWLEC 1354
Case: [2010] NSWLEC 1354
Decision Date: 13 October 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Hough and another (the applicants) brought proceedings against Rettenmaier and another (the respondents) regarding a bamboo hedge that obstructed views from the applicants' property. The case was the first under the new Part 2A of the Trees (Disputes Between Neighbours) Act 2006, which allows the Court to intervene in disputes about high hedges. The Court had to decide if it had jurisdiction over the matter and if the obstruction of views was severe enough to warrant an order under the Act.

The Court found that the bamboo hedge met the statutory criteria for being considered a tree under the Act, as it was a proscribed plant in the regulation. The hedge also exceeded the required height of 2.5 meters and consisted of multiple planted bamboo clumps forming a continuous barrier. The Court then assessed the impact on the applicants' views, considering factors such as the value of the views, the position from which they were observed, and the extent of the obstruction. The views from the family/kitchen room were not significantly obstructed, but the views from the lower and upper rear balconies were severely impacted by the bamboo hedge. The respondents' potential plans to add a storey to their house were deemed irrelevant to the current proceedings.

The Court also considered the respondents' privacy and the impact of pruning on the bamboo. It concluded that while the obstruction of views was severe, the respondents' need for privacy was also valid. The Court ordered the respondents to prune the bamboo to a height of 1.8 meters above the fence and maintain it at a height not exceeding two meters. The respondents were required to carry out the initial pruning within ninety days and maintain the hedge at the specified height regularly. The Court determined that the proposed pruning regime was reasonable and would not impose an undue burden on the respondents.

Orders