Pongrass v Caridad
[2019] NSWLEC 1468
•27 September 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Pongrass v Caridad [2019] NSWLEC 1468 Hearing dates: 14 August 2019 Date of orders: 27 September 2019 Decision date: 27 September 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The orders of the Court are:
(1) The application to prune the Pearce Street hedge is refused.
(2) The application to prune the boundary hedge is granted.
(3) During January, April, July and October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the bamboo hedge along their eastern boundary, north of the dwelling, so that no part of the bamboo is taller than 2.5 metres in height, measured from ground level near the base of the wooden planter in which the bamboo grows.
(4) On reasonable notice, the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – application concerns two hedges on two neighbouring properties – bamboo – obstruction of view – whether the trees are severely obstructing a view – privacy – whether the view was available to the applicant before the hedge grew Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: Woollahra Development Control Plan 2014 Category: Principal judgment Parties: Nicolas Pongrass (Applicant)
John Caridad (First Respondent)
Maribel Caridad (Second Respondent)Representation: Counsel:
Solicitors:
A Landro (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondents)
Colin Biggers & Paisley Lawyers (Applicant)
Sparke Helmore Lawyers (Respondents)
File Number(s): 2019/103798 Publication restriction: No
Judgment
Background
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Nicolas Pongrass (‘the applicant’) has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (“the Trees Act”), for orders relating to two bamboo hedges on two neighbouring Double Bay properties. One of those properties is owned by Maribel Caridad, the other by Maribel and John Caridad (‘the respondents’). Orders relating to an olive tree, part of the original application, were not pressed at the hearing.
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There is no dispute between the parties regarding the effort made by the applicant to reach agreement (s 14E(1) of the Trees Act). They do not dispute that bamboo in each hedge is planted so as to form a hedge and rises to more than 2.5 metres tall. Therefore, I am to determine whether the bamboo hedges severely obstruct views from the applicant’s dwelling, and if so, after considering matters at s 14F, what orders would be appropriate.
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The hedge to the south of the applicant’s dwelling is the ‘Pearce Street hedge’. The hedge to the north of the dwelling is the ‘boundary hedge’.
Pearce Street hedge
Is it causing a severe obstruction of a view?
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Bamboo in the Pearce Street hedge is approximately four metres tall. The hedge is at least six metres from the applicant’s dwelling.
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From the upstairs bedroom and living room (V4 and V5B), the only view obstructed by the bamboo would be a view into two neighbouring courtyards. The broader landscape view is not obstructed; the sky view is not affected.
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The window of the downstairs study (V5A) would not open, so the Court observed the view from the garden, outside the window. The applicant’s own hedge, a short distance from the window, obstructs most of the view, with the bamboo only slightly visible above this.
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I find that the bamboo cannot be said to severely obstruct a view from any of the windows described above (V4, V5A and V5B). As a result, this element of the application is refused.
Boundary hedge
Is it causing a severe obstruction of a view?
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Bamboo in the boundary hedge is approximately four metres tall, extending along the common boundary from the rear part of each dwelling to the olive tree near the rear boundaries of these properties. Both properties back onto the beach at Double Bay.
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From the upstairs main bedroom (V3) and rear deck (V1A), the bamboo obstructs only a small part of the overall view. Part of the beach cannot be seen, but the broad view of the harbour remains available. The hedge has never been taller, so has never obstructed more of this view.
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From the downstairs living room (V2) and rear deck (V1B), the bamboo forms a solid screen above the boundary fence. From here it obstructs a more significant portion of the view, including almost half of the water view that would otherwise be available.
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Mr Landro argued for the applicant that this obstruction meets the test of ‘severe’. Mr Campbell for the respondents argued that, from V2, the view is only obstructed when standing against a side wall of the living room. Mr Campbell argued that the view when sitting at the table on the deck (V1B) would include only a little more sky if the bamboo was pruned to 2.5 metres.
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Considering the overall view, and the value of the water view to the applicant, I find the obstruction is severe. The bamboo affects the view from much of the living room (V2), not just from the side wall. Standing on the rear deck (V1B) I noted that pruning the bamboo to 2.5 metres would allow the broad water views to be enjoyed. The obstruction is sufficient to affect the applicant’s enjoyment of these parts of the dwelling. It is more than minor or moderate, but less than devastating. The Court can therefore make orders for this hedge, after considering matters at s 14F.
Matters to consider at s 14F
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I have considered the matters at s 14F and discuss the relevant ones below.
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The bamboo grows along the boundary fence on the respondents’ land, extending from the rear of the applicant’s dwelling toward the rear boundaries of the properties. It is taller than the fence, so produces a screen-like effect above the fence.
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The bamboo was planted relatively recently. It was not there when the applicant purchased their property. It has grown to its current height, more than 2.5 metres, during the period the applicant has owned their land. Part 2A of the Trees Act allows an affected landowner who has lost a view they enjoyed earlier to obtain orders to remedy, restrain or prevent the view obstruction. The respondents argued that along this same boundary the applicant once had a hedge of fig trees, which they removed in 2018. The respondents submitted that the applicant’s hedge was the same height as the bamboo hedge is now, reaching to the height of the respondents’ balcony. The applicant argued that their hedge was not so tall, as shown in photographs, and that they removed it to restore their view, which they then enjoyed until the bamboo grew into it. I have compared the various heights of plants in photos that show the applicant’s earlier fig hedge, the respondents’ earlier camellia or lilly pilly hedge, and the current bamboo hedge. I am satisfied that the applicant’s view was less obstructed by their own fig hedge than it is now by the bamboo. The bamboo was apparently planted in 2017, and the fig hedge was removed in early 2018, so it is also likely that there was a period when the view was not obstructed by the fig hedge at all, while the bamboo caused only minor obstruction until it grew to its current size.
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The applicant submitted that bamboo is exempt from any controls within the Woollahra Development Control Plan 2014 (“Woollahra DCP”). However, the Woollahra DCP lists only rhizomatous bamboo among its exempt species, rather than this clumping bamboo.
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The bamboo has no historical, cultural or scientific value and provides little in the way of any environmental benefits. It contributes to the landscape value of the respondents’ land. Its contribution to public amenity is minor.
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Pruning the trees to the height suggested by the applicant would not have any adverse impact on the bamboo. It is already pruned heavily, albeit it at a taller height. The applicant took the Court to other bamboo hedges in the neighbourhood to demonstrate the height to which bamboo might grow, and the speed with which it grows. The applicant suggested quarterly pruning is required to maintain the bamboo at a desired height.
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The bamboo provides privacy screening between the two properties. Indeed that is its principal purpose. The respondents made submissions on the importance of this, arguing that other hedges have always been present along this boundary and they simply wish to maintain their privacy. They do not want people on the applicant’s property looking into their house and garden. The applicant pointed out that the respondents have such a hedge on only one side of their garden. There is nothing taller than the boundary fence on the other side of the respondents’ garden to prevent their other neighbours overlooking into their house and garden.
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The olive tree and cheese tree closer to the applicant’s rear boundary each obstruct part of the view. This places greater importance on the remaining view, much of which is now obstructed by the bamboo, which is much closer to the applicant’s dwelling than either of those other trees.
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The bamboo is evergreen, providing a screening effect throughout the year.
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From V1B and V2 the bamboo obstructs water views. The water view is perhaps the most valuable part of the view available to the applicant. In the view-sharing assessment process established at [25]–[29] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”), Senior Commissioner Roseth recognised that some parts of a view are more valuable than others.
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Senior Commissioner Roseth also recognised in Tenacity that impacts to views from living areas might be more significant than impacts to views from utility areas. Both V1B and V2 are high-use living areas.
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I do not find Senior Commissioner Roseth’s consideration of views across side boundaries so relevant to tree matters, though they are clearly relevant to development applications.
Conclusions
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I find the boundary hedge severely obstructs a view from the applicant’s dwelling, a view previously available to the applicant. I find the applicant’s interests in restoring their view outweigh the respondents’ interests in maintaining the hedge at its current height. The respondents do not have privacy from their other neighbours. The expectation to completely prevent overlooking in such a situation is perhaps unreasonable. Some privacy can be maintained with a shorter hedge. Considering the growth habit of this bamboo, the applicant’s suggested pruning frequency seems reasonable.
Orders
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As a result of the foregoing, the orders of the Court are:
The application to prune the Pearce Street hedge is refused.
The application to prune the boundary hedge is granted.
During January, April, July and October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the bamboo hedge along their eastern boundary, north of the dwelling, so that no part of the bamboo is taller than 2.5 metres in height, measured from ground level near the base of the wooden planter in which the bamboo grows.
On reasonable notice, the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.
……………………………….
D Galwey
Acting Commissioner of the Court
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Decision last updated: 02 October 2019
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