Macfadyen v Daley

[2023] NSWLEC 1751

Land and Environment Court

New South Wales

Medium Neutral Citation:

Macfadyen v Daley [2023] NSWLEC 1751

Hearing dates:

21 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following Orders.

(2) Within 30 days of the date of these Orders, the respondents are to remove, or pay for a suitably qualified contractor to remove, all bamboo along the northern side of the fence that is the common boundary fence along the applicant’s courtyard.

(3) The respondents are to take all reasonable steps to prevent the bamboo regrowing along that section of the boundary.

(4) Any further hedge planting along that section of the boundary must be of a species that grows no taller than 3 metres, or must be maintained at a height of no more than 3 metres.

(5) The exhibits are returned, except for Ex A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of sunlight – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed

Legislation Cited:

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

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:

GM Adams & Associates Pty Ltd v Hornsby Shire Council [2002] NSWLEC 89

P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

Category:

Principal judgment

Parties:

Christine Macfadyen (Applicant)
Tim Daley (First Respondent)
Michelle Scott (Second Respondent)

Representation:

Counsel
C Macfadyen (Self-represented) (Applicant)
T Daley (Self-represented) (First Respondent)
M Scott (Self-represented) (Second Respondent)

File Number(s):

2023/254348

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Christine Macfadyen (the applicant) owns a unit in a residential development (Limona) in West Pennant Hills. On the property to her north, Tim Daley and Michelle Scott (the respondents) have planted a row of bamboo along the common boundary. Ms Macfadyen has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the bamboo to be pruned and maintained at a height of 2.5 metres.

2. The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on sunlight. Privacy and overlooking issues were observed at both properties.

Pt 2A

3. The key jurisdictional tests in these proceedings are found at s 14E(2) of the Trees Act:

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.

Reasonable effort to reach agreement

4. The applicant has dropped off letters to the respondents and asked her strata committee to raise the issue with the respondents. She received no reply. After she began cutting some bamboo culms nearest the fence, the respondents told her they would thin the bamboo. They removed a small amount of bamboo at the eastern end of the hedge, and thinned out remaining culms. However, they have made it clear that they intend to maintain the bamboo at its current height, and want it thick enough to provide visual screening along the boundary. That is, despite her efforts, it was clear that the applicant would not get agreement on her preferred outcome. I am satisfied that the applicant made a reasonable effort.

The hedge

5. At s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. The Slender Weavers Bamboo is planted so as to form a hedge and is more than 2.5 metres. It follows that Pt 2A of the Trees Act applies to the bamboo (s 14A(1) of the Trees Act). The bamboo provides a screen along the common boundary. Prior to recent thinning, the screen was denser than at the time of the hearing.

Obstruction of sunlight

6. The bamboo grows on the respondents’ property along most of the applicant’s courtyard fence. The bamboo reaches more than 8 metres tall. It has been thinned to some extent in the last few months, but still provides a dense screen that is little more than 3 metres to the north of the applicant’s dwelling. The bamboo would obstruct most of the light that is available to the applicant’s north-facing windows from autumn through to spring, when sunlight is most wanted. I am satisfied that this amounts to a severe obstruction of sunlight.

7. Before making any orders, I am required to consider the matters at s 14F of the Trees Act.

Consideration of other matters

8. The bamboo grows along the boundary, only a few metres from Ms Macfadyen’s dwelling.

9. Ms Macfadyen’s unit is separated from the common boundary by a narrow strip of Limona’s common property, being her courtyard. Section 14B of the Trees Act requires the trees to be on land adjoining the applicant’s land. The Court discussed the meaning of ‘adjoining’ in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, where properties separated by a street were considered to be adjoining. For the purposes of the Trees Act, I find the trees are growing on land that adjoins the applicant’s property.

10. Council consent would not be required to prune or remove the bamboo.

11. The respondents say they planted the bamboo to provide a privacy screen between their two-storey dwelling and the multi-dwelling development to their south, including dwellings above Ms Macfadyen’s. The respondents submitted that the development consent for Limona required trees at least 10 metres tall to be planted to screen the built form from surrounding properties. They provided a copy of GM Adams & Associates Pty Ltd v Hornsby Shire Council [2002] NSWLEC 89. The condition included in that judgment reads:

“The landscape plans required by Condition No. 8 shall provide for the planting of a minimum of twenty-five (25) trees with a minimum growth height of 10 metres in suitable locations within the development, to ensure that the proposed roof lines are screened from surrounding and public places.”

The respondents argued that, had these trees been planted to the north of the applicant’s dwelling, they would not have had to plant bamboo. They stated that the condition was clearly not satisfied.

12. I note that the planning condition required trees that would grow to at least 10 metres tall be planted in suitable locations. Ms Macfadyen’s courtyard is small, with insufficient room for growing a tree that would grow to more than 10 metres. It is not a ‘suitable location’ for such a planting. Furthermore, the purpose of the condition was to screen the building’s roof line, not to provide privacy screening between neighbouring dwellings. At the time of the decision, the respondents’ dwelling did not exist. For these reasons, I find the condition has no relevance to these proceedings.

13. The respondents submitted that their bamboo was a condition of their own development consent. However, they were unable to provide evidence of this, so I give this argument no weight in my decision.

14. The respondents argued that the application arises not from any interruption to Ms Macfadyen’s, or her tenant’s, enjoyment or use of the property, but from her recently frustrated effort to sell her property. Ms Macfadyen agreed that what motivated her application was her real estate agent’s advice that the lack of light detracted from the property. However she also submitted that the issue arose much earlier. After mould developed in her apartment, she obtained reports that identified the bamboo and lack of light as contributing factors. She emailed her strata committee asking them to take up the issue with the respondents. Even if difficulty selling her property motivated Ms Macfadyen to apply to the Court, the issue is ongoing.

Other factors contributing to the obstruction

15. Another tall bamboo hedge to the applicant’s northeast, on waterboard land, would obstruct early morning sun in winter. The balcony of the unit above her extends northward of her wall and so obstructs some sunlight to her windows. This is not something that can be remedied. Further to the north, some distance away, a tall gum tree would obstruct some winter sunlight, but it would also allow more light through its canopy than it obstructs. The respondents have stated that their aim is to maintain a tall hedge that provides visual screening between the properties. Despite the other factors that contribute some obstruction, the hedge is the primary obstruction, and one that the applicant has some means of controlling via her application.

Privacy

16. The respondents’ bedroom windows on their first floor face south. The apartment above the applicant’s has bedroom windows facing north. The respondents want a tall screen between these windows. This expectation is perhaps unreasonable in such a dense residential setting. I observed that the windows of the unit above the applicant’s have shutters that can be closed for privacy, and are more than 12 metres from the respondents’ bedroom windows. The respondents could also place blinds or curtains on their own windows. In the circumstances, I give more weight to the applicant’s access to sunlight than the respondents’ wishes for privacy.

Other matters

17. The applicant pointed to the bamboo’s proximity to the boundary fence. It rubs against the fence and pushes against it during strong winds. She submitted that it is likely to damage the fence.

18. Balancing the bamboo’s benefits against the applicant’s sunlight access, I consider it is appropriate to make orders to remedy or prevent the obstruction of sunlight caused by the bamboo. The applicant sought orders for the hedge to be maintained at 2.5 metres. I noted that a height of 3 metres would allow sunlight to reach her windows. However, the bamboo’s natural height suggests it is not the most appropriate plant for maintaining a 3-metre screen along this boundary. The respondents would be repeatedly pruning bamboo that no longer provides the screening that they want. Therefore I will make orders for the bamboo’s removal along the length of the boundary shared by the parties. Some bamboo will remain to the west unless the respondents determine to remove that also. Any new planting along the common boundary in front of the applicant’s unit will be restricted to a height of 3 metres.

Orders

19. The Court orders:

1. The application is granted to the extent of the following Orders.

2. Within 30 days of the date of these Orders, the respondents are to remove, or pay for a suitably qualified contractor to remove, all bamboo along the northern side of the fence that is the common boundary fence along the applicant’s courtyard.

3. The respondents are to take all reasonable steps to prevent the bamboo regrowing along that section of the boundary.

4. Any further hedge planting along that section of the boundary must be of a species that grows no taller than 3 metres, or must be maintained at a height of no more than 3 metres.

5. The exhibits are returned, except for Ex A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 06 December 2023