Moore v Studholme

[2020] NSWLEC 1519

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moore v Studholme [2020] NSWLEC 1519

Hearing dates:

28 July 2020

Date of orders:

29 October 2020

Decision date:

29 October 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)   The application is granted.

(2)   Within 60 days of the date of these orders, the respondents are to remove all bamboo and tiger grass in Hedge 2 on their southern side boundary, Hedge 3 on their front boundary, and Hedge 4 on their northern side boundary, and take any action required to prevent the tiger grass and bamboo in these three hedges regrowing.

(3)   If the respondents establish any hedges along their northern or southern side boundaries in future, they are to use species that grow to a height of no more than 5 metres at maturity.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo and tiger grass – obstruction of views – whether the obstruction is severe – whether the applicant has lost access to views – orders for removal – orders to restrict height of future hedges

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW)

Trees (Disputes Between Neighbours) Regulation 2019

Cases Cited:

Steber v Job [2019] NSWLEC 1308

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Principal judgment

Parties:

David Phillip Moore (Applicant)
Brett Alexander Studholme (First Respondent)
Alma Studholme (Second Respondent)

Representation:

D Moore (Litigant in person) (Applicant)
B Studholme (Litigant in person) (First Respondent)
A Studholme (Litigant in person) (Second Respondent)

File Number(s):

2020/122734

Publication restriction:

No

Judgment

Background to the application

1. In August 2016 David Moore (‘the applicant’) purchased his residential dwelling near the top of a ridge in Goonellabah, on the far north coast of New South Wales. After his views were affected by trees on the neighbouring property belonging to Brett Studholme and Alma Studholme (‘the respondents’) he applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the trees to be pruned and maintained at a height of 2.5 metres and for the trees’ growing area to be reduced.

The hearing

2. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

Framework for this decision

3. For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The trees form hedges

4. The application includes plants in four separate hedges made up of tiger grass and bamboo. Both tiger grass and bamboo are grasses, but according to the Trees (Disputes Between Neighbours) Regulation 2019, they are trees for the purposes of the Trees Act.

5. The properties are typical medium-density residential properties with their dwellings covering a significant portion of the properties. The respondents’ property is to the north of the applicant’s; their street frontage is to the west. The trees are:

• Hedge 1, bamboo along the eastern (rear) boundary;

• Hege 2, bamboo and tiger grass along the southern (side boundary), nearest to the applicant;

• Hedge 3, bamboo near the western (street frontage) boundary; and

• Hedge 4, bamboo along the northern (side) boundary.

6. The plantings are hedge-like in nature, forming screens along the respondents’ various boundaries. They are approximately 8–9 metres tall, although since the respondents received the application the tiger grass has been cut to ground level and the bamboo has been thinned. The respondents submitted that trees in Hedge 2 and Hedge 3 do not from hedges, but gave no justification for this opinion. I am satisfied trees in all four groups are planted so as to from hedges that are more than 2.5 metres tall.

The applicant made reasonable effort

7. Mr Moore contacted the agent who manages the respondents’ property, requesting that something be done to maintain the hedges and restore his views. In early 2020 he gave a letter to the agent but received no response. Mr Moore submitted that he would have preferred to avoid bringing the matter to Court but could see no alternative. I accept he made reasonable effort to resolve the situation.

Trees in three hedges severely obstruct views from the applicant’s dwelling

8. The application included views from other neighbouring dwellings, and the impacts of the hedges on those views. The Court cannot consider view impacts to other dwellings. Only impacts to views from Mr Moore’s dwelling are considered in making this decision.

9. Hedge 1 grows along the respondents’ rear boundary. While it can be seen from the applicant’s dwelling, it is not within the sightline of broad landscape views. Mr Moore conceded during the hearing that Hedge 1 does not significantly obstruct his view. It might obstruct the views from other dwellings, but does not severely obstruct views from the applicant’s dwelling, so no orders will be made for Hedge 1.

10. A photograph taken on 21 July 2020 (in Exhibit C), after the tiger grass was cut to ground level and the bamboo was thinned, shows Hedge 4 obstructing a significant portion of the broad landscape view to the north from the applicant’s dwelling. It could be considered a severe obstruction, and was no doubt worse before the respondents’ recent actions.

11. In the same photograph the top of Hedge 2, in the foreground, is growing into the same view. Being much closer to the applicant’s dwelling, its impact will be more severe than the obstruction caused by Hedge 4. Before the respondents’ recent actions, it also would have caused a severe view obstruction. Indeed, photographs taken before the application was filed (in Exhibit B) show bamboo in Hedge 2 severely obstructing the view from the applicant’s patio.

12. Another photograph taken from the applicant’s dwelling on 21 July 2020, looking to the northwest, shows the top of Hedge 3, at the front of the respondents’ property, partially obstructing distant landscape views. Prior to its recent thinning, the bamboo would have obstructed significantly more of this view.

13. Bamboo in each of these three hedges has blocked a significant portion of the applicant’s view. The extent of obstruction caused by each could be considered severe, and the combined effect is certainly severe.

14. I am satisfied that Hedge 4 severely obstructs a view from the applicant’s dwelling. I am also satisfied that bamboo in both Hedge 2 and Hedge 3 severely obstructed a view from the applicant’s dwelling until recently, and is likely to do so again in the near future. I find the obstruction caused by these hedges is therefore an ongoing state of affairs. That being the case, orders can be made for these three hedges, even if recent pruning has temporarily reduced the bamboo’s impact on views. This is similar to the situation found in Steber v Job [2019] NSWLEC 1308, where bamboo was found to severely obstruct a view.

15. I consider the lack of any action taken here by the respondents, to the extent that the applicant did not get a reply to written correspondence, indicates an unwillingness to deal with issues regarding their bamboo. During the hearing the respondents offered to upload further photographs to support their arguments regarding the extent of view obstruction. Despite the Court’s clear timeline for filing evidence, given in an earlier directions hearing, and an opportunity provided to the parties to file further evidence in light of the final hearing proceeding via audio-visual means, the respondents had declined to file any material. Their willingness to act only after the event, in regard to both the filing of evidence and the maintenance of their hedges, does not convince me that their verbal commitment to maintain the hedge will prevent the applicant’s view obstruction recurring soon.

16. For the reasons set out above, I am satisfied that bamboo in Hedge 2, Hedge 3 and Hedge 4 severely obstructs views from the applicant’s dwelling.

Should orders be made to address the view obstruction?

17. Having found a severe obstruction of views caused by Hedge 2, Hedge 3 and Hedge 4, I can make orders if the applicant’s interests in remedying the obstruction outweigh reasons against interfering with the trees (s 14E(2)(b) of the Trees Act). Relevant matters that must be considered are included at s 14F.

The location of the trees

18. Hedge 2 grows along the respondents’ southern side boundary nearest the applicant’s dwelling. Hedge 4 grows along the respondents’ northern side boundary. Hedge 3 grows in two parts at the front of the respondents’ property, either side of their driveway. Bamboo in these three hedges is planted close to the respective boundaries.

When did the hedges obstruct the views?

19. The respondents purchased their property in 2013, at which time their dwelling, and neighbouring dwellings, were already present. They planted the hedges for privacy and to establish some vegetation on their property.

20. The applicant purchased his property in August 2016, by which time his neighbours’ hedges were growing. Mr Moore wrote in his application form (Exhibit B) that the trees were then less than 2 metres tall. He submitted that he had extensive views. Some bamboo can be seen in a photograph taken from his patio in 2016 (Exhibit B). It may have been more than 2 or 2.5 metres tall, but it was not severely obstructing views. These same views were obstructed by bamboo in later photographs. I am satisfied that the views now obstructed by bamboo are ones that the applicant previously enjoyed from his dwelling.

Consent would not be required

21. No evidence was adduced regarding the need for local government consent. If Lismore City Council’s consent was required to prune or remove the bamboo, I would not see this as a reason to avoid making orders. The bamboo is not significant in any way. Permission would not be required under any other Acts.

Benefits and value of the trees

22. The bamboo contributes to amenity and privacy on the respondents’ property. It provides visual screening between their dwelling and surrounding properties. It has no particular significance in any other criteria that might provide reasons to avoid interfering with it.

The impact pruning would have on the trees

23. Bamboo regrows quickly. Its long-term viability is generally not impacted by pruning.

Other factors contributing to view obstruction

24. Other trees and dwellings obscure parts of the applicant’s views, but do not completely obstruct large sections of the view as the bamboo does.

Steps taken by the parties

25. Prior to making this application to the Court, Mr Moore tried unsuccessfully to prompt the respondents to deal with the hedges.

26. The respondents took no action prior to receiving the Court application. Since then, they have removed the tiger grass to ground level and thinned the bamboo. During their submissions they admitted they were ‘in the wrong’, and they were sorry they had let the situation with their neighbour come to this.

Whether the trees lose their leaves

27. The bamboo is evergreen and therefore provides a dense screen throughout the entire year.

The nature of the views

28. Most of the applicant’s photographs were taken from his north-facing patio. His property is higher than the respondents’, so that his views across their back garden and the top of their dwelling include the broad landscape to the north and northwest, extending to the horizon. The respondents argued that only a small portion of the applicant’s view is obstructed now that they have pruned the bamboo. However, photographs demonstrate that bamboo in each hedge can completely obstruct a significant portion of the applicant’s view.

Parts of the dwelling from which the view is obstructed

29. In his photographs a barbeque can be seen on Mr Moore’s patio. It is an area for spending leisure time, and one from which the view might be appreciated.

Conclusions

30. The respondents’ bamboo and tiger grass in Hedge 2, Hedge 3 and Hedge 4 grew to obstruct views that the applicant earlier enjoyed when he purchased his property in 2016. The obstruction became severe, as bamboo in each hedge obstructed a significant portion of the view. Although the respondents removed the tiger grass to ground level and thinned the bamboo, this only occurred after they received the Court application. They had not responded to earlier requests from the applicant. Bamboo grows quickly and is likely to obstruct the applicant’s views again shortly. On this basis, I find that the bamboo severely obstructs views from the applicant’s dwelling. While the bamboo provides some privacy and amenity to the respondents’ property, the applicant’s interest in restoring his views outweighs these benefits. It is therefore reasonable to make orders to remedy the view obstruction and to prevent the bamboo obstructing views in future.

31. Photographs show that the bamboo grew quickly. It will continue to do so, and would require frequent pruning to maintain it at a suitable height. Other plantings could provide similar benefits to the respondents’ property without the onerous task of pruning every few months. I will therefore make orders to remove the bamboo and remnants of tiger grass, rather than order its ongoing maintenance. Their choices for any replacement plantings should not be narrowly restricted by stipulating species selection, but I will make an order for restricting to 5 metres the height of any future hedge plantings along their southern and northern boundaries. This restriction applies only to vegetation planted to form a hedge.

Orders

32. For the reasons given above, the Court orders:

1. The application is granted.

2. Within 60 days of the date of these orders, the respondents are to remove all bamboo and tiger grass in Hedge 2 on their southern side boundary, Hedge 3 on their front boundary, and Hedge 4 on their northern side boundary, and take any action required to prevent the tiger grass and bamboo in these three hedges regrowing.

3. If the respondents establish any hedges along their northern or southern side boundaries in future, they are to use species that grow to a height of no more than 5 metres at maturity.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 29 October 2020