Lonnon v Clow
[2020] NSWLEC 1091
•27 February 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Lonnon v Clow [2020] NSWLEC 1091 Hearing dates: 27 February 2020 Date of orders: 27 February 2020 Decision date: 27 February 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that:
(1) During April and October each year, beginning April 2020, the respondents are to prune all bamboo along the common boundary they share with the applicant to a height no greater than 4 metres.
(2) The respondents are to give the applicant at least two days’ notice of the works.
(3) The applicant is to allow any access required during reasonable hours of the day to clean up any debris that falls into his property as a result of the works above.
(4) Should the respondents remove and replace the bamboo in future, any future hedge along this boundary is to be maintained at a height no greater than 5 metres.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – whether the view obstruction is severe – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Category: Principal judgment Parties: Kenneth Joseph Lonnon (Applicant)
Barry Clow (First Respondent)
Dorothea Ada Clow (Second Respondent)Representation: K Lonnon (Litigant in person) (Applicant)
B Clow (Litigant in person) (First Respondent)
D Clow (Litigant in person) (Second Respondent)
File Number(s): 2019/379203 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background to the application
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In the coastal village of Scotts Head, Kenneth Lonnon (‘the applicant’) purchased a residential property in 2011. He enjoyed a view of the Pacific Ocean and the long beach stretching to the north. In 2013 his neighbours Dorothea and Barry Clow (‘the respondents’) planted bamboo on their two properties, one of which they still own. Mr Lonnon has asked the Clows several times to prune the bamboo growing along the common boundary between his and the Clows’ properties, so that he can maintain his view. The Clows have not pruned the bamboo, so Mr Lonnon applied to the Court pursuant to s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the bamboo to be removed and replaced with a species that will not obstruct his view.
Onsite hearing
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The onsite hearing allowed the Court to observe the bamboo, the views and any issues of privacy and amenity. Mr Lonnon relied on a report by arborist Ryan Darrington of Valley Tree Services.
Framework for this decision
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Bamboo is a tree for the purposes of the Trees Act. The bamboo extends for approximately six metres along the common boundary and includes many plants. The bamboo forms a hedge and is more than 2.5 metres tall (s 14A(1) of the Trees Act). Mr Lonnon has made a reasonable effort to reach an agreement with the Clows (s 14E(1)). Therefore I must determine if the view obstruction is severe; and if Mr Lonnon’s interests in having the bamboo pruned outweigh any reasons not to interfere with it (s 14E(2)).
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Mr Lonnon also claimed the bamboo is damaging the boundary fence, but his application in only made under Part 2A of the Trees Act, which deals with obstruction of sunlight and views, so I cannot make any orders to address that issue.
The bamboo severely obstructs the applicant’s view
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From the rear deck of his dwelling, Mr Lonnon has views to the north. Mr Lonnon argued that the long sweep of the beach along the bay north of Scotts Head is the iconic part of his view. I accept this. In Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (‘Tenacity’), Roseth SC recognised at [26] that some elements of a view may be more valuable than others.
“26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.”
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The beach north of Scotts Head is a valuable part of Mr Lonnon’s view. The bamboo that is the subject of this application obstructs a significant portion of that view. I find that the bamboo severely obstructs a view from Mr Lonnon’s dwelling (s 14E(2)(a)(ii) of the Trees Act), so I can make orders after considering the range of relevant matters at s 14F.
Relevant matters
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According to Mr Darrington’s report, the bamboo is Slender Weavers Bamboo (Bambusa textilis var. gracilis), a clumping, non-invasive variety. The bamboo grows along the common boundary. Although it is some distance from Mr Lonnon’s dwelling, it forms a solid wall-like screen more than eight metres tall, for approximately six metres along the common boundary. Several bamboo shoots are 1—2 metres taller, indicating its future growth potential. The Clows would not require permission from Nambucca Valley Council to prune or remove the bamboo.
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The view is not completely obstructed. Views of the beach and ocean further to the north remain, although these are partially obstructed by other vegetation in the landscape. The bamboo obstructs the most valued element of the view. Other trees partly obstruct this view but they are more distant and are part of the landscape. They do not form a dense screen as the bamboo does; rather they leave available the overall sense of the view.
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The bamboo contributes to the amenity and landscape value of the Clows’ garden. The Clows enjoy its contribution to their garden.
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The Clows planted the bamboo for privacy, to prevent overlooking from properties upslope, including Mr Lonnon’s. An adjacent property has already been developed with multiple dwellings, screened from the Clows by the bamboo. The Clows submitted that buildings on these properties are allowed to reach a height of 8.5 metres. The bamboo therefore not only screens their property from existing dwellings, but also ‘future-proofs’ them against potential development.
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Although the bamboo provides an effective privacy screen for the Clows, I observed that a hedge 4-5 metres tall would have the same effect, preventing existing overlooking issues. Any future development is presently unknown, so I cannot determine the impacts of any future overlooking, nor can I make orders on that basis.
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If pruned, the bamboo will continue to grow and provide the screening benefits enjoyed by the Clows.
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Mr Lonnon’s rear deck has a table and chairs and is an area where residents are likely to spend time eating, socialising and enjoying the view.
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Mr Lonnon’s proposed orders include removal of the bamboo and replacement planting of a smaller species. The Clows would prefer to retain the existing bamboo, even if it must be pruned, rather than remove and replace it. As long as Mr Lonnon’s view is restored and maintained, I see no issue with the existing bamboo being retained and pruned. Should the Clows wish to remove and replace it in future, that is a matter for them.
Conclusion
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The bamboo severely obstructs a view from Mr Lonnon’s dwelling. I find that his interests in restoring and maintaining his view outweigh reasons not to interfere with the bamboo (s 14E(2)(b) of the Trees Act).
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The bamboo will need to be pruned twice a year. Pruning to a height of four metres will allow for regrowth between pruning events.
Orders
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As a result of the foregoing, the Court orders that:
During April and October each year, beginning April 2020, the respondents are to prune all bamboo along the common boundary they share with the applicant to a height no greater than 4 metres.
The respondents are to give the applicant at least two days’ notice of the works.
The applicant is to allow any access required during reasonable hours of the day to clean up any debris that falls into his property as a result of the works above.
Should the respondents remove and replace the bamboo in future, any future hedge along this boundary is to be maintained at a height no greater than 5 metres.
……………………………….
D Galwey
Acting Commissioner of the Court
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Decision last updated: 03 March 2020
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