Low v Cooper

[2022] NSWLEC 1596

Land and Environment Court

New South Wales

Medium Neutral Citation:

Low v Cooper [2022] NSWLEC 1596

Hearing dates:

15 September 2022

Date of orders:

31 October 2022

Decision date:

31 October 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   Within 45 days of the date of these orders, the respondent, at their own expense, shall prune the hedge of bamboo trees to the height of 21.95m AHD, which is along the southern boundary fence on 7 Ryan Avenue, being the common fence with 5 Ryan Avenue, and to remove refuse.

(2)   The respondent, at their own expense, shall maintain the hedge in this location, so that at no time in the future, after completion of the pruning in Order 1, does the height of the hedge exceed a level above 21.95m AHD.

(3)   The pruning works shall be completed by AQF level 3 arborists, with all appropriate insurances, and in accordance with the Australian pruning standard (AS4373:2007 Pruning of amenity trees).

(4)   The tree works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5)   Should access be required into the Applicant’s property to undertake these works or to remove refuse, the applicant shall provide such access to the respondents, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the Respondent.

(6)   The works are to be completed during reasonable working hours.

(7)   All exhibits are returned.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the applicant made reasonable effort – high hedges – is the obstruction of views severe – balance between views and privacy – pruning ordered

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

AS4373:2007 Pruning of amenity trees

Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Patricia Low (Applicant)
Guy Cooper (Respondent)

Representation:

Counsel:
T To (Applicant)
A Sattler (Solicitor)(Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers Rose (Applicant)
Sattler & Associates Pty Ltd (Respondent)

File Number(s):

2022/5584

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought by Patricia Low (the applicant) against Guy Cooper (the respondent), an adjoining neighbour, pursuant to Pt 2A, s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), which seeks orders to prune trees that form a hedge.

2. Pursuant to Pt 2A of the Trees Act, the applicant seeks orders for the respondent to prune and maintain trees that cause a severe obstruction of view and sunlight.

Background and context to the application

3. The applicant purchased 5 Ryan Avenue, Mosman in 2009. The dwelling at 5 Ryan Avenue was altered with additions by development consent granted in 2017. It was originally a single storey dwelling, and after construction, as per the consent, became a two-storey dwelling with bedrooms upstairs and living areas located downstairs in the original part of the structure.

4. The area surrounding the applicant’s land is steeply sloping, with dwellings on other lots ranging from two to three stories, responding to the topography and seeking to capture the views of the harbour, across Hunters Bay. Dwellings immediately surrounding and including the applicants land generally have their private open space with a pool in the rear, and direct their living space towards the view.

5. The respondent is a resident of 7 Ryan Avenue, Mosman since March 1997, and his land is occupied by a two-storey dwelling with a rear private open space and pool. Until mid-2020, on the southern boundary of this land, along the common fence with 5 Ryan Avenue was a row (hedge) of Sasanqua Camellia trees, that was maintained to a height of about 3 m. The hedged extended from the pergola (westerly) to the rear of the dwelling, along the fence line. In around June 2020, a 5 m section of the Camellia trees was removed (next to the pergola) by the respondent and replaced with bamboo trees, as advised to the Court, in response to a perceived loss of privacy from the development on the applicant’s land. The height and placement of the bamboo trees is in dispute. The existing pergola, located in the south-eastern corner of this property, is decorated by a well-established wisteria that was planted on the applicants’ land. The wisteria and existing Camellia hedge are not in dispute.

The hearing

6. The hearing in these proceedings took place both onsite and in Court. Parties were represented by Counsel and had relevant experts in attendance. The Court visited both properties to assess the trees, view and sunlight perspective, and also understand the surrounding environment.

7. The applicant provided recent and historical photographs of views from her land, which are supported by an expert planning report. The applicant’s affidavits of 19 May 2022 and 29 August 2022 were read onto the record and describe the history of communication.

8. The respondent provided expert reports on arboriculture and view, which are also supported by recent and historical photographs.

9. Further to the evidence tendered, I observed the trees in dispute and proximity of the relevant viewpoints. I also rely on my own expertise in making this decision.

The Applicant made reasonable effort

10. Part 2A, ss 14C(1) and 14E(1) of the Trees Act requires the Court to be satisfied, before making any orders, that the applicant has made a reasonable effort to reach agreement with the respondent before the Court can make orders, as described below.

14C Notice of application for order to be given to owners of affected land

(1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to:

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

(2) The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period.

(3) The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

14E Matters of which Court must be satisfied before making an order

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

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

…

11. The evidence validates that the applicant has attempted to discuss the issue of the placement and height of the bamboo trees with the respondent, having written to him on numerous occasions, starting in July 2020, and which continued sporadically until 13 December 2021. The respondent has throughout this time continued to disagree to the removal of the bamboo trees to protect his privacy, most recently on 20 December 2021.

12. The appeal was lodged with the Court on 22 December 2021, pursuant to Pt 2A, s 14B of the Trees Act, below, seeking an order to prune the bamboo hedge:

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

13. I am satisfied that the applicants’ efforts to communicate with the respondent were reasonable. Pursuant to Pt2A, s 14C of the Trees Act, I find that it is appropriate in the circumstances to waive the requirement to give (21 days) notice and to vary the period of notice. The applicant has made a reasonable effort to resolve the dispute, initiating communication 18 months prior to lodging the appeal.

Trees in the application

14. The applicants’ appeal relates to the stand of bamboo trees on land of 7 Ryan Avenue located along the common boundary fence. The bamboo trees stand as a clump, which have recently been trimmed to a height of about 3 m (0.6-1m above the top of fence), although it was shown from photographs in evidence to have extended up to 6 m in height in the past. This 6 m height is understood to be a maximum height for bamboo trees, as validated by the evidence of the respondents’ arborist. 

15. The parties and Court agree that the bamboo trees that are in dispute form a hedge, pursuant to Pt 2A, s 14A, below:

14A Application of Part

(1) This Part applies only to groups of 2 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).

16. The bamboo trees are planted in an orderly row, and they have grown over 2.5m in height since planting, therefore, pursuant to Pt 2A, s 14A(1) of the Trees Act.

Severe obstruction

17. Before making an order, the Court is required to assess and be satisfied as to the severity of the obstruction of views from, and sunlight to windows in, a dwelling on the applicants’ land at 5 Ryan Avenue (hereafter the land), as a consequence of any or all of the trees in the (bamboo) hedge located on the respondents land at 7 Ryan Avenue (hereafter the adjoining land), pursuant to Pt 2A, s 14E(2) of the Trees Act, below:

14E Matters of which Court must be satisfied before making an order

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

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

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

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(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.

18. In assessing the severity of obstruction to views from the land, the Court draws guidance in the planning principles on view sharing established in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), which at [26] – [28] states:

[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 eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured”.

[27] The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries….”

[28] The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively negligible, minor, moderate, severe or devastating.

19. Based on the evidence before the Court and observations from the site view, I accept that the views across Hunters Bay, towards North Head are highly valued, and include the interface between land and water. Most dwellings in the surrounding area are oriented to capture this view. The view across Hunters Bay was clearly visible across the common side boundary from the dwelling on the land (directed across 7 Ryan Avenue) at the time of purchase by the applicant and prior to the establishment of the (bamboo) hedge. This side boundary view is assessed as the main view corridor, with filtered views also obtained across the rear boundary (across 26 Esther Road).

20. I assess that the view as originally observed from the lounge windows in the dwelling on the land (and from the private open space in the rear yard) was primarily across Hunters Bay, includes the land/water interface and was highly valued. This view, as currently observed, with the (bamboo) hedge at its current height and location, is not available from this lounge, although is obtained from the first-floor main bedroom (albeit through privacy screens) and balcony, and partially from the rear yard.

21. In assessment of the extent, position and nature of the view obstruction, I am satisfied it is severe. Consideration of the site context through the prism of the first three Tenacity steps leads me to a determination of ‘severe’.

22. I am also satisfied that the (bamboo) hedge being at a height that is above the top of the fence causes a severe obstruction to sunlight through the lounge room window in the dwelling on the land (at 5 Ryan Avenue). I am satisfied that the lounge window previously (in the same position as in the original dwelling) obtained a reasonable level of sunlight prior to the planting and growth of the bamboo hedge, and that pruning of the hedge would return the sunlight to the lounge area.

23. Consequently, Pt 2A, s 14E(2)(a) of the Trees Act is engaged.

Balancing of interests

24. As Pt 2A, s 14E(2)(a) of the Trees Act is satisfied, because the bamboo hedge on the adjoining land causes a severe obstruction of sunlight and views to/from the dwelling on the land, there is a need to consider the balancing of interests before engaging Pt 2A, s 14E(2)(b), in making an order.

25. Before determining this application and making an order, the Court must consider the matters described in Pt 2A, s 14F of the Trees Act, below:

14F Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction,

(o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost,

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

(s) such other matters as the Court considers relevant in the circumstances of the case.

26. In addressing the matters for consideration in Pt 2A, s 14F of the Trees Act, I assess the following:

• The fence and bamboo hedge is located at least 5 m from the dwelling on the land.

• The bamboo trees that form the hedge did not exist prior to the lounge window in the dwelling on the land, and it is understood that the sill height of the lounge window and its location were not altered during recent renovations.

• The bamboo hedge has attained a height since planting of over 3.5m, and up to 5-6m. It is fast growing and dense in form.

• Removal of the bamboo hedge would not require consent of approval, and it was not planted with any consent or approval.

• Bamboo trees do not have any historical, cultural, social or scientific value, or contribute to biodiversity, being an introduced and non-native species.

• The bamboo hedge does not contribute to the natural landscape, provide value to public amenity, affect natural features of the land or impact on other trees.

• The bamboo hedge makes a limited contribution to the privacy of the adjoining land, although only at a height that causes severe obstruction to the dwelling on the land, regarding views and sunlight.

27. I am satisfied that the requirements of Pt 2A, s 14F of the Trees Act have been assessed in consideration of making an order.

Conclusions

28. I am satisfied that the requirements of Pt 2A, s 14E(1)(b) of the Trees Act are met, for the Court to make an order. Namely, pursuant to s14E(1), because the applicant has made a reasonable effort to reach an agreement to resolve the dispute, the notice period is waived, and pursuant to s14E(2)(a), the bamboo trees that form the hedge cause a severe obstruction to both sunlight and views from a dwelling on the applicants’ land. I have assessed consistent with s14F, that pruning of the hedge that causes the severe obstruction outweighs disturbance of these trees and any perceived privacy benefit on the adjoining land, pursuant to s 14E(2)(b).

29. Based on the evidence before me and observations made on the site view, I am satisfied that the bamboo trees that form the hedge on the adjoining land at 7 Ryan Avenue should be pruned to a reasonable height.  The maintenance of this fast growing, invasive species to mitigate the severity of obstruction in the future could be problematic if not managed properly or to a height that ensures the relevant view perspective between pruning events. 

28. I consider it reasonable for the bamboo hedge to be pruned to the height of the top of the common fence, which will protect the view and sunlight to the dwelling on the land. Pursuant to Pt 2A, s 14D(2)(a-c) of the Trees Act, I require the respondent to prune the bamboo trees that form the hedge to an elevation (height) of the existing common fence. This height is not inconsistent with the adjoining (Camellia) hedge, albeit a little lower, to account for growth of the bamboo between pruning.

29. I am not satisfied that the height of the hedge (currently at 5.3m from ground level on the land), as proposed in the respondent’s alternate orders (Exhibit 6) is reasonable, because this would not mitigate the severe obstruction of sunlight and views on the land.

30. In the interest of providing a definitive baseline to support future management of this fast-growing hedge, I assess that the bamboo trees (and any other trees that form a hedge in this location) should be pruned to the elevation/height of the top of fence, rather than any alternative height as suggested by the applicant or respondent. The top of the fence has been surveyed by Bee & Lethbridge, in a report dated 20 October 2022, which was agreed by the parties to be engaged for this purpose. The survey level at the top of the fence within direct view of the lounge window on the land at 5 Ryan Avenue, being close to the pergola, is relied on by the Court.

31. Therefore, pursuant to Pt 2A, s 14D(1) of the Trees Act, I order that the bamboo trees that form the hedge along the southern boundary of the adjoining land (7 Ryan Avenue) should be maintained to a maximum height of 21.95m AHD. This hedge height will sufficiently mitigate the severe obstruction of views and sunlight to 5 Ryan Avenue, and still provide a reasonable degree of privacy to 7 Ryan Avenue.

Orders

34. The orders of the Court are as follows:

1. Within 45 days of the date of these orders, the respondent, at their own expense, shall prune the hedge of bamboo trees to the height of 21.95m AHD, which is along the southern boundary fence on 7 Ryan Avenue, being the common fence with 5 Ryan Avenue, and to remove refuse.

2. The respondent, at their own expense, shall maintain the hedge in this location, so that at no time in the future, after completion of the pruning in Order 1, does the height of the hedge exceed a level above 21.95m AHD.

3. The pruning works shall be completed by AQF level 3 arborists, with all appropriate insurances, and in accordance with the Australian pruning standard (AS4373:2007 Pruning of amenity trees).

4. The tree works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

5. Should access be required into the applicant’s property to undertake these works or to remove refuse, the applicant shall provide such access to the respondents, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the Respondent.

6. The works are to be completed during reasonable working hours

7. All exhibits are returned.

…………………….

Sarah Bish

Commissioner of the Court   

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Decision last updated: 31 October 2022