Owners of Strata Plan 4015 v Mizrachi

[2024] NSWLEC 1304

Land and Environment Court

New South Wales

Medium Neutral Citation:

Owners of Strata Plan 4015 v Mizrachi [2024] NSWLEC 1304

Hearing dates:

04 March 2024

Date of orders:

07 June 2024

Decision date:

07 June 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders:

(1) Within 30 days of the date of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to their western boundary, to a height not exceeding 3.5 metres above the level of the respondents’ swimming pool coping.

(2) During November 2024, and during May and November of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to their western boundary, to a height not exceeding 3.5 metres above the level of the respondents’ swimming pool coping.

(3) The pruning works in orders (1) and (2) shall be undertaken by AQF level 3 qualified arborists or qualified horticulturists (the contractor), with all appropriate insurances.

(4) Should access be required to the applicant’s property to undertake these pruning works, the applicant shall grant all reasonable access upon receipt of at least 72 hours emailed notice from the respondents, with an attached copy of the contractor’s insurance Certificates of Currency.

(5) Should the bamboo be replaced in future, any alternative planting shall be maintained at or below a height of 3.5 metres above the level of the respondents’ swimming pool coping.

(6) All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – bamboo – view obstruction severe – sunlight obstruction – balance between redemption of ocean views and privacy – pruning ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979

Trees (Disputes Between Neighbours) Act 2006, ss 6, 14A, 14B, 14C, 14D, 14E, 14F, Pt 2A

Trees (Disputes between Neighbours) Regulation 2019, s 4

Cases Cited:

Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Haindl v Daisch [2011] NSWLEC 1145

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

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006, NSW Department of Justice and Attorney General, November 2009

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

Waverley Development Control Plan, 2022

Category:

Principal judgment

Parties:

Owners of Strata Plan 4015 (Applicant)
Alon Mizrachi (First Respondent)
Rachel Mizrachi (Second Respondent)

Representation:

Counsel:
B Gallifuoco (Applicant)
K Mezinec (Solicitor) (Respondent)

Solicitors:
McCullough Robertson Lawyers (Respondent)

File Number(s):

2023/360210

Publication restriction:

Nil

JUDGMENT

Background

1. COMMISSIONER: Alon and Rachel Mizrachi, the respondents, purchased and occupied their Vaucluse property in 2015. Respondents’ photographs from 2016 and 2017 showed trees and shrubs along both side boundaries bordering a back lawn. The trees on the western boundary appeared about 4 metres (m) tall, though an African Tulip Tree adjacent to the back western corner of the dwelling looked a few metres taller.

2. Located west of the respondents, the applicant, owners of Strata Plan 4015 (SP 4015), share a side boundary extending from about south at the street access to just west of north at the rear. Residents of SP 4015 impacted by the bamboo had enjoyed ocean views eastward over the respondents’ land since around 2012.

3. In March 2018, Ms Mizrachi advised Mr Weir, an apartment owner and committee member, that the existing west side boundary trees were to be replaced with bamboo in conjunction with the installation of a swimming pool. Bamboo clumps about 4 m tall prior to planting in November 2018 were shown in Mr Mizrachi’s Annexure D to his affidavit of 27 February 2024 (Mizrachi affidavit).

4. Over subsequent years, strata owners reported increasing obstruction of views and sunlight by the bamboo. Between August and October 2022, the applicant made three written requests for pruning but all were denied. The final letter of 18 October demanded pruning be undertaken by 2 November 2022 to avoid commencement of legal action. In an email to apartment owner, Mr Cowan, on 4 November 2022, Mr Mizrachi committed to prune the bamboo to 4 m above the applicant’s ground level in mid-2023, upon his re-occupation. The applicant considered such delay unacceptable.

5. The respondents were absent from their property between May 2022 and about October 2023 while extensions and renovations were undertaken. Upon the respondents’ re-occupation, SP 4015 made an application under s 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act).

The on-site hearing

6. As is customary, the hearing commenced at the respondents’ property for an inspection of the trees. Ms Gallifuoco of Counsel represented the applicant, while Solicitors, Ms Mezinec and Mr Kuipers, represented the respondents.

7. The trees, Bambusa textilis var. Gracilis (Slender Weavers Bamboo), were about 7 m tall, with some taller emergent culms (stems). They formed a thick dense screen, as is their nature.

8. The applicant had submitted a Tree Assessment report, dated 12 February 2024 (the report), from Mr Smith, an Australian Qualification Framework (AQF) level 5 arborist from Tree Space Consulting. The report noted the planted length of the bamboo as 10 m, its canopy spread as 11 m x 4 m, and height as 6-7 m.

9. The Court moved to the applicant’s property, which had apartments on four levels. The application claimed severe obstruction of sunlight to three windows in separate apartments, with the most severe impact claimed at W6, in first-floor apartment 12, located closest to the hedge. Though apartment 12 was not accessible for assessment, the report included photographs taken from a ladder placed adjacent to W6 that appeared representative of the hedge’s impact.

10. For assessment of view obstruction, the applicant nominated eight locations across four apartments, three of which were on the first floor, and one on the second floor. One viewpoint was in the inaccessible apartment, but view obstruction was assessed from the other three apartments. Upper-level units were unobstructed by the hedge.

11. Though the respondents resisted intervention with the hedge, on 22 December 2023, following service of the application on the respondents, the Mizrachi’s offered Mr Cowan an agreement to prune the bamboo annually at 4.75 m above their pool coping at the respondents’ expense, provided the owners of Strata 4015 withdrew the application under the Act.

12. The Application Claim Details, at question 12, referenced an agreement forged by the respondents with a prior owner of the applicant’s apartment 10 to prune the bamboo, or at least part thereof, to a height of 3.83 m above their pool coping in mid-2023. No such pruning eventuated, however.

Jurisdictional requirements – Part 2A

13. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

14. The first test is s 14A(1), that is, is the bamboo a hedge for the purpose of the Act?

15. Section 14A(1) states:

(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. Bamboo is prescribed as a tree for the purposes of the Act in accordance with s 4 of the Trees (Disputes between Neighbours) Regulation 2014 and Slender Weavers Bamboo is frequently the subject of ‘hedge’ applications.

17. About 10 clumps of bamboo were growing in a fairly straight row along the common boundary. They were spaced apart evenly, and the respondents acknowledged planting them. The trees were about 7m in height, and I am satisfied that they were planted so as to form a hedge. Therefore, s 14A(1) of the Act is engaged.

18. The applicant satisfied s 14C(1)(a) of the Act, by providing evidence of service of the application and the terms of any order sought on the respondents in an affidavit from Mr Weir, dated 12 February 2024 (Weir affidavit). Stamped evidence in the case file confirmed receipt of the documents by Council, engaging s 14C(1)(b). Therefore, s 14C of the Act was satisfied.

19. Section 14D details the Court’s jurisdiction to make a broad range of orders.

20. Section 14E(1)(a) of the Act requires that the applicant has made a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated.

21. Copies of communication in both parties’ affidavit annexures included multiple applicant requests for, and respondent rejections of, bamboo pruning. In August 2022, Mr Cowan, an apartment owner, requested Mr Mizrachi prune the bamboo but the request was denied. On 4 October 2022, the applicant requested bamboo pruning by the respondents at a height of 2.5 m because “residents have had their views and sunlight blocked by your bamboo hedge for over a year now”. Such pruning was rejected. A second applicant’s letter on 18 October 2022 demanded pruning be undertaken by 2 November 2022 to avoid commencement of legal action.

22. This evidence showed the applicant made a reasonable attempt to reach agreement with the owner of the land on which the trees are situated, thus engaging 14E(1)(a) of the Act. Section 14E(1)(b) was engaged by satisfaction of s 14C of the Act.

23. The next step is to assess the severity of the obstruction of sunlight to a window of a dwelling, and obstruction of views from the applicant’s dwelling as a consequence of any or all of the trees in the hedges. I shall initially address the applicant’s primary consideration of view obstruction.

24. Section 14E(2)(a) states:

(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.

Are views severely obstructed?

25. From the three assessed apartments, owners viewing points were primarily from living areas and adjacent balconies with the claimed severe obstruction relating to views towards the east through to north-east. Views from living areas are assigned the highest significance, particularly from standing positions, whereas bedrooms are not prioritised, given they are predominantly for sleeping.

26. Following Haindl v Daisch [2011] NSWLEC 1145; at [65]-[69], the Court has taken guidance from 3 steps of a view sharing principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity). At [26] – [28], Tenacity 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. In addition, whether the view is enjoyed from a standing or sitting position, may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

[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.”

27. The applicant submitted that obstructed water views are highly valued, consistent with Step 1, and that standing views from living rooms were impacted, as prioritised in Step 2 and Step 3, respectfully.

28. The extent of impact for the whole of the property, in the context of a residential strata, provides for consideration of each affected apartment. In both first-floor apartments, the bamboo obstructed views from all nominated viewing points. Though the applicant’s views were gained across the respondents’ side boundaries, the applicant’s building was oriented towards easterly views and the applicant provided extensive evidence showing previously available water views.

29. The applicant described the bamboo as “similar to a wall in its effect” and I concur. This goes to the purpose of the legislation. Recommendation 9, point b of the "Review of the Trees (Disputes Between Neighbours) Act 2006 "(the Review) undertaken by the NSW Department of Justice and Attorney General and published in November 2009, said:

“That this jurisdiction be strictly limited, with applications restricted to hedges which:

are both high and give the effect of a solid barrier, and

are causing severe impact for a dwelling, and

have caused the impact to the applicant (not to the previous occupant), and

are located between neighbours on adjoining land.”

30. All recommendations from the Review were incorporated into Pt 2A of the Act.

31. Water views from the second-floor apartment were almost blocked but the obstruction was not yet severe. From the two first-floor apartments, from a standing position, view obstruction by the hedge was almost entire, with about 3.5 – 4 m of bamboo obstructing above the horizon from the worst affected apartment and about 3.0 – 3.5 m above the horizon from the other. Images at page 9 of the report showed views from the unoccupied first-floor apartment 12 were probably similarly impacted. Images of “before and after” views from both first-floor apartments, also on page 9 of the report, showed substantial water views over the respondents’ trees before the bamboo. Annexures A-E to the Weir affidavit also exhibited extensive water views available pre bamboo.

32. Consequently, I accepted the applicant’s submission that the obstruction of views as a consequence of the hedge was severe and therefore, s 14E(2)(a)(ii) of the Act was engaged.

Is sunlight to a window severely obstructed?

33. East facing windows can only receive direct sunlight in the morning and the duration of sunlight is further compromised where windows or glass doors were located at the back of balconies, below roofs. The applicant claimed the hedge obstructed previously available sunlight from 6:30am – 9am. The Court has taken guidance from criteria used by local government in assessment of overshadowing in development applications, where sunlight to living areas between 9 am to 3pm is emphasised.

34. On this basis, considering the bamboo extended about 2.5 m higher than the top of W6, and arched westward over the common boundary, I am satisfied that sunlight was severely obstructed to W6, the window closest to the hedge, in the inaccessible apartment 12. Therefore, s 14E(2)(a)(i) was engaged.

35. Though I appreciate the desirability of the early morning sunlight sought by the applicant, all other nominated windows, which were variously more distant from the hedge, received sufficient sunlight that I was not persuaded they suffered severe obstruction of sunlight.

36. As s 14E(2)(a) was met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

(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.

Section 14F considerations

37. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required, as follows:

38. The hedge is located in the respondents’ property, parallel to their western boundary, and in close proximity to the applicant’s dwelling (s 14F(a)).

39. The trees were planted in November 2018, three years after the respondents’ occupation and after the occupation of relevant applicant owners (s 14F(b)).

40. The trees have grown to their current height since that time and form a wall like barrier (s 14F(c)).

41. In the absence of s 6(3) of the Act, if the hedge’s height is pruned more than 20% within any 12-month period, the respondents would require a Vegetation Clearing Permit, under the Environmental Planning and Assessment Act 1979, as administered by Council under the Waverley Development Control Plan, 2022, (s 14F(d)).

42. The bamboo has no historical, cultural, social or scientific value. It may provide some habitat, but its debris causes soil hydrophobia, and the bamboo makes little contribution to the local ecosystem and biodiversity (s 14F(f) and (g)).

43. The bamboo may contribute to the scenic value of the land on which it is situated but is not sufficiently prominent to provide intrinsic value to public amenity (s 14F(h) and (i)).

44. Slender Weavers Bamboo is hardy and resilient. Provided it receives sufficient water, it is tolerant of regular pruning for maintenance of height and breadth (s 14F(k)).

45. The hedge contributes to the respondents’ landscaping and garden design and plays an important role providing privacy (s 14F(l)).

46. Though distant dwellings and vegetation also cause minor view obstruction, relative to the bamboo, their impact is insignificant (s 14F(m)).

47. The respondents have taken no steps to prevent or rectify the obstruction, nor have they permitted the applicant to do so (s 14F(n)).

48. The hedge is evergreen (s 14F(p)).

49. The view impacted is the Pacific Ocean which is highly valued (s 14F(q)).

50. The impacted view locations within apartments were primarily living areas (s 14F(r)).

51. Section 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case.

52. The respondents have pursued an unreasonable quest for improved privacy at the expense of water views previously enjoyed by various applicant owners. In March 2018, Ms Mizrachi advised Mr Weir of the respondents’ intention to replace existing trees along the side of the adjoining fence with bamboo which will likely grow to an [approximate] height of the current trees”, regardless that readily available information on the internet notes Slender Weavers Bamboo has a likely mature height around 8 m, about twice the height of the “current trees”, and a rapid growth rate. Mr Mizrachi’s annexure J showed images of the bamboo, already about 5 – 6 m tall, in March and May 2022. In an October 2022 email, Mr Mizrachi advised he would prune the bamboo to 4 m above the applicant’s ground level in mid-2023, but this commitment was not honoured. Instead, the respondents persistently refused to take any measures to remedy or reduce the applicant’s view obstruction.

Conclusion

53. Having considered the discretionary factors in s 14F of the Act, I am satisfied that 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.

54. I am not satisfied that hedge removal is appropriate, however, as the respondents’ privacy would be unreasonably compromised. Rather, orders shall be made for pruning the hedge at a height of 3.5 m above the respondents’ pool coping, twice annually, consistent with the report recommendation. The orders bind the respondents and their immediate successor in title.

53. Notwithstanding that Mr Mizrachi claimed his west side boundary trees were over 4 m when replaced by bamboo in 2018, the baseline for pruning height determination is 2015, at the respondents’ occupation. Though an improvement on former views is contrary to the intent of the jurisdiction, considering the conclusive evidence submitted by the applicant, restoration of views enjoyed before the respondents’ occupation is a reasonable applicant expectation.

54. To this effect, 3.5 m above the respondents’ pool coping is a fair estimate of the respondents’ west side tree height upon their occupation in 2015. Other than the African Tulip Tree near the dwelling which the respondents chose to remove, and perhaps the Frangipani tree, which is not part of the hedge, the west side boundary trees appeared about 4 m tall in the 2017 photograph at annexure B to the Mizrachi affidavit, prior to the pool.

55. This height was reduced by 500 mm, which I considered conservative as it accounts for tree height growth between 2015 and 2017 of say 300 mm, the additional height of the pool coping relative to the original lawn level, and the view obstruction impact of bamboo regrowth between future pruning events. The determination of 3.5 m was also consistent with my estimate that the bamboo rose up to 4 m above the horizon from first-floor apartments, given that the horizon and ocean were visible in images of apartment owners’ views prior to the bamboo, reproduced on both page 9 of the report and in annexures to the Weir affidavit.

56. The cost burden of carrying out orders usually falls on the respondent. Considering the respondents’ persistent refusal to remedy the applicant’s obvious view obstruction, there is no reason to vary the convention.

57. The applicant claimed for reimbursement of costs of the application, but Commissioners do not have powers to order legal costs and the like. Costs claims require lodgement of a Notice of Motion with the Court, which is heard before a Registrar or a Judge. Should it be necessary, enforcement of orders is also initiated by a Notice of Motion to the Court.

58. The orders provide relief for the applicant from severely obstructed views, conformity with the intent of the Trees Act to provide a remedy where an applicant has suffered severe obstruction of sunlight or a view from a wall like hedge, and reasonable privacy for the respondents, similar to that enjoyed upon their occupation. The applicant will also gain an incidental reduction in sunlight obstruction.

Orders

61. As a consequence of the foregoing, the orders of the Court are:

1. Within 30 days of the date of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to their western boundary, to a height not exceeding 3.5 metres above the level of the respondents’ swimming pool coping.

2. During November 2024, and during May and November of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to their western boundary, to a height not exceeding 3.5 metres above the level of the respondents’ swimming pool coping.

3. The pruning works in orders (1) and (2) shall be undertaken by AQF level 3 qualified arborists or qualified horticulturists (the contractor), with all appropriate insurances.

4. Should access be required to the applicant’s property to undertake these pruning works, the applicant shall grant all reasonable access upon receipt of at least 72 hours emailed notice from the respondents, along with a copy of the contractor’s insurance Certificates of Currency.

5. Should the bamboo be replaced in future, any alternative planting shall be maintained at or below a height of 3.5 metres above the level of the respondents’ swimming pool coping.

6. All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 07 June 2024