Porteous v Mares
[2022] NSWLEC 1544
•05 October 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Porteous v Mares [2022] NSWLEC 1544 Hearing dates: 29 March 2022 Date of orders: 05 October 2022 Decision date: 05 October 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that:
(1) The application is granted to the extent of the following orders.
(2) Until such time as the Respondents’ bamboo hedges are removed, in May and November each year beginning November 2022 the Respondents are to engage and pay for a suitably qualified and experienced contractor to prune all bamboo in Hedge A to a height no greater than 3.8 metres above the top of the existing sleeper wall supporting the garden bed along the parties’ common boundary; and to prune all bamboo in Hedges B and C to a height no greater than the pruned height of Hedge A.
(3) The Respondents are to give the Applicants one week’s notice of each pruning event.
(4) For each pruning event, the Applicants are to allow reasonable access during reasonable hours of the day for the contractor to complete the pruning and clean-up.
(5) If the bamboo in Hedges A, B or C is removed, any replacement hedge planting is to be of a species that grows no taller than 3.8 metres, or is to be maintained below 3.8 metres in height.
(6) The exhibits are returned, other than Exhibits A, B, D, 1 and 2.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the applicants have lost access to views – privacy and other benefits of the trees
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, s 3, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited: McDougall v Philip [2011] NSWLEC 1280
Steber v Job [2019] NSWLEC 1308
Taylor v Dixon [2022] NSWLEC 1083
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category: Principal judgment Parties: Heath Porteous (First Applicant)
Julie Porteous (Second Applicant)
Jason Mares (First Respondent)
Diana Dica (Second Respondent)Representation: Counsel:
Solicitors:
H Porteous (Self-represented) (First Applicant)
J Porteous (Self-represented) (Second Applicant)
M Wirth (Solicitor) (Respondents)
Henry William Lawyers (Respondents)
File Number(s): 2021/342773 Publication restriction: No
Judgment
Background to the application
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Commissioner: Julie and Heath Porteous (the Applicants) purchased their Avalon Beach property in 2015. Diana Dica and Jason Mares (the Respondents) bought the adjoining property in May 2019. Bamboo hedges were planted on the Respondents’ property before the Applicants and Respondents came to these properties. The Applicants have 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 removed or pruned to a height to restore views they enjoyed previously. They also sought an order for costs, which Commissioners of the Court do not have the power to grant.
The hearing
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The final hearing in these proceedings took place onsite. The Applicants were self-represented; Mr Wirth represented the Respondents. The Court visited both properties to view the trees, the views and any view obstruction, and the surrounding environment.
Part 2A of the Trees Act applies to the trees
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Part 2A of the Trees Act provides a limited jurisdiction for those who find neighbouring trees obstruct their sunlight or views. Firstly, at s 14A:
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).
(2) Despite section 4, this Part does not apply to trees situated on Crown land.
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The application concerns Slender Weavers Bamboo (Bambusa textilis var. gracilis) in three separate hedges within the Respondents’ property: Hedge A, along their rear boundary, being the common boundary shared with the Applicants; Hedge B, along their side boundary, a common boundary shared with other neighbours to their southwest; and Hedge C, along their other side boundary shared with neighbours to their northeast. Bamboo is a tree for the purposes of the Trees Act (s 3). It is not disputed that the bamboo is planted to form three hedges, all of which have grown to more than 2.5 metres tall, and they are not on Crown land, so Pt 2A applies to these trees.
The Applicants made a reasonable effort
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Before the Court can make any orders, the jurisdictional tests at s 14E(1) of the Trees Act that must be satisfied.
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) …
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The Applicants discussed with the Respondents their issues around the bamboo. In early 2020 the parties negotiated a formal agreement for pruning, but that lasted only a few months. They have since been unable to reach any further agreement, despite efforts made by both parties. I am satisfied that the Applicants made a reasonable effort to reach an agreement. The Applicants gave notice of their application in accordance with s 14C.
Do the trees cause a severe view obstruction?
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Before the Court can make any orders, the jurisdictional test at s 14E(2)(a) of the Trees Act must be satisfied.
14E Matters of which Court must be satisfied before making an order
(1) …
(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) …
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The Applicants’ dwelling has two levels. Views from the upper level are not obstructed. From the living areas and deck on the lower level, the Applicants submitted that the view to the east over the Respondents’ property is obstructed by bamboo in the three hedges. The view potentially includes water views beyond Avalon Beach, Avalon headland, and the vegetated suburban landscape beyond the Respondents’ property. Standing on the Applicants’ deck during the hearing, we observed the view, which was generally available above the bamboo. From sitting positions within the dwelling, the bamboo partially obstructs the view. Nevertheless, photographs provided by the Applicants show the bamboo was recently taller than this, and had been taller for some time. When taller, the bamboo obstructed a significant portion of the view. More distant vegetation has grown since the Applicants came to their property, so that only a small part of the original water view remains. Mr Wirth, solicitor for the Respondents, argued that the water view was the valued view; and because it is largely obstructed by other vegetation, the bamboo could not be severely obstructing the view. On the other hand, the Applicants stated that they value not only the water view, but the broader landscape view, including the headland.
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Considering the impact of the three hedges collectively, I find that the bamboo, when it was recently taller, severely obstructed the Applicants’ view. Applying the terminology of the view-sharing principle used by Roseth SC at [28] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140, the obstruction was more than ‘moderate’ but less than ‘devastating’. The outlook here is a broad view of the landscape. It might feature small areas of water view, but the sense of space and one’s place in the landscape is gained from the overall view. If a tall hedge obscured this entire view other than for a small ‘window’ cut into it here and there for the available water view, the obstruction would still be severe.
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The bamboo grows quickly; without frequent maintenance it will obstruct the view again shortly. In Steber v Job [2019] NSWLEC 1308 (Steber), a hedge was pruned prior to the onsite hearing, but before that it severely obstructed a view and would be likely to do so again soon after. As the ongoing state of affairs was a severe view obstruction, the test at s 14E(2)(a)(ii) of the Trees Act was satisfied and orders were made.
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In the current proceedings, the Applicants’ view was severely obstructed by the bamboo. After removing taller culms in March 2020, the Respondents pruned the hedge in April 2020, reducing its height. The Applicants undertook some further pruning in May 2020. The bamboo quickly grew into the view again before the Respondents pruned it again in June 2021. After the Respondents received the tree dispute application and not long before the hearing, further pruning in early 2022 removed bamboo culms that extended above the main body of the hedges. By the time of the hearing, many more culms had extended well above the tops of the hedges.
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The history of disagreement, rather than agreement, between the parties suggests that a cooperative approach to maintaining the hedges is unlikely. Hedge A grows in a relatively narrow raised garden bed. It is approximately 5 metres tall, measured from the ground in the raised garden bed, which is a metre or so above the level area of lawn. Pruning the tops of these bamboo hedges requires considerable effort, demonstrated in a photograph showing a contractor up a tall ladder. Even then, to prune the hedges properly, access is required to the Applicants’ property, and possibly also to another neighbouring property. That is, the bamboo’s rapid growth rate requires frequent pruning, with each pruning event requiring considerable effort. The Applicants cannot rely on the bamboo being maintained at even its current height.
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I find here a situation similar to that in Steber: despite the hedge’s height at the time of the hearing, the ongoing state of affairs here is that the bamboo causes a severe view obstruction, so as permitted by s 14E(2)(a)(ii) of the Trees Act, the Court can make orders to “remedy, restrain or prevent” (s 14D) the obstruction.
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Here I note that the Applicants engaged Martin Bregozzo, a certified valuer, to assess the impact of the view loss on their property value. Mr Bregozzo concluded that bamboo’s obstruction of the Applicants view reduced their property value by $200,000 excluding GST. The Court has regularly applied a qualitative assessment of view obstructions, as I have done above, rather than a hypothetical quantitative and economic assessment of the view impacts. I have not relied on Mr Bregozzo’s valuation report in reaching my findings regarding the severity of the view obstruction.
Balancing the interests of the parties
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Before the Court can make orders, the jurisdictional test at s 14E(2)(b) of the Trees Act that must be satisfied.
14E Matters of which Court must be satisfied before making an order
(1) …
(2) The Court must not make an order under this Part unless it is satisfied that:
(a) …
(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.
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To weigh the interests of the parties, the Court is assisted by the list of matters at s 14F, which I have considered in making this decision. Relevant matters are discussed below.
The trees’ location
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The bamboo grows on the Respondents’ property along their rear and side boundaries. It is close enough to the Applicants’ dwelling to severely obstruct their view.
The Applicants had access to a view
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The Applicants have owned their property since 2015. Marketing photos of the property taken around that time show that the water view was available from their living areas and deck. Mr Wirth submitted that the photos were not reliable, as they had been taken to maximise the perception of views and they had been manipulated to make the water colour more intense. That may be, however further photos from 2018 (for instance on p 7 of Exhibit C) show the ocean visible above the bamboo of Hedge A from a sitting position. At that time, the Applicants submitted, they had an agreement with the previous owners of the Respondents’ property. Another photograph from May 2020, taken shortly after the Respondents pruned the hedge, shows broad views available above the bamboo.
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The Court has consistently found that the intent of the Trees Act is to provide a remedy where an applicant has suffered the loss of sunlight or a view, but not where the obstruction already existed at the time a person purchased their property: see McDougall v Philip [2011] NSWLEC 1280 at [22]–[24] and Taylor v Dixon [2022] NSWLEC 1083 at [10]–[12]. I find that the Applicants had access to a view that is now severely obstructed by the Respondents’ bamboo hedges.
Council consent
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Consent from Northern Beaches Council is not required for pruning or removing a hedge.
Benefits of the bamboo
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The bamboo contributes to the amenity of the Respondents’ property. It contributes positively to their landscape and garden design. It has no notable environmental benefits, and has no cultural or social significance. Its principal benefit to the Respondents is privacy.
Privacy
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As Mr Wirth submitted, the main issue at s 14F is to balance the Applicants’ view against the Respondents’ privacy. The bamboo provides a vegetative screen that prevents overlooking into the back of the Respondents’ dwelling and into their garden. They do not want to lose their privacy.
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The Applicants submitted that the top of the hedges had been 3.5 metres tall, rather than the current height of 5 metres. With bamboo at the shorter height, they said, they were only able to see the Respondents’ roofline, not their windows or garden. The taller height, to which they had earlier agreed with the Respondents, was not required for privacy.
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In an affidavit dated 2 March 2022 (Exhibit 2), Meshell Johnson, a previous owner of the Respondents’ property, stated that she agreed in 2015 for the Applicants to prune the bamboo. She said that she was unsure at what height they pruned the bamboo, but she was never able to see their dwelling from her own dwelling.
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A photograph on page 10 of attachments to Mr Porteous’ affidavit of 16 March 2022 (Exhibit D) shows the view from the Applicants’ deck. Above the top of the hedge, only the Respondents’ roof can be seen. A photograph taken from the back of the Respondents’ dwelling nine days later (on p 12 of attachments) shows that only the very top the Applicants’ roofline could be seen above the hedge. At that time, the hedge appears to be less than 4 metres tall. In reaching this conclusion, I have compared the photographs on pages 7 and 10 of the attachments to Mr Mares’ affidavit of 2 March 2022 (Exhibit 1), the former photo showing Mr Mares holding a 5-metre height pole.
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It appears that the Applicants’ view and the Respondents’ privacy could both be preserved with the bamboo maintained at a height of less than 4 metres, but more than 3.5 metres.
Impacts of pruning
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The Respondents engaged Kyle Hill, arborist, to prepare a report. Mr Hill’s report claims to include a letter of instruction, but does not. Mr Hill measured the three hedges, finding the bamboo was 4.5–5.25 metres tall, the tallest section being midway along the parties’ common boundary. Mr Hill described the bamboo as being severely impacted by past pruning. He concluded that the bamboo should be maintained at a height of 5 metres, as reducing its height further “would further compromise its obvious decline in condition (health and vigour) following the very heavy-handed pruning undertaken.” I do not accept this. Slender Weavers Bamboo is successfully used to form hedges that are maintained well below 5 metres. This bamboo species will continue to grow new culms that will renew the vegetative screen it provides, so that any temporary adverse impact of severe pruning would soon disappear.
Nature of the view obstruction
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The bamboo is evergreen; its obstruction of the view is year-round. The valued view has been, and could be again, enjoyed from living areas of the Applicants’ dwelling.
Other matters
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The photograph on page 9 of attachments to Mr Mares’ affidavit (Exhibit 1) demonstrates the onerous and risky task of pruning the hedge at a height of more than 4 metres. A contractor appears to be standing on the top rung of an extended ladder. It seems unlikely that the practice being undertaken would conform with a Safe Work Method Statement. The regular task of pruning would be less onerous, and far safer, if the hedge is maintained at a lower height that reasonably preserves privacy. Considering the growth rate of this bamboo, I find regular pruning twice each year to a height of 3.8 metres would be reasonable. The height measurement is to be taken from the top of the existing retaining wall supporting the garden bed in which Hedge A grows. Hedges B and C should then be pruned to match the height of Hedge A.
Orders
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As a result of the foregoing, the Court orders that:
The application is granted to the extent of the following orders.
Until such time as the Respondents’ bamboo hedges are removed, in May and November each year beginning November 2022 the Respondents are to engage and pay for a suitably qualified and experienced contractor to prune all bamboo in Hedge A to a height no greater than 3.8 metres above the top of the existing sleeper wall supporting the garden bed along the parties’ common boundary; and to prune all bamboo in Hedges B and C to a height no greater than the pruned height of Hedge A.
The Respondents are to give the Applicants one week’s notice of each pruning event.
For each pruning event, the Applicants are to allow reasonable access during reasonable hours of the day for the contractor to complete the pruning and clean-up.
If the bamboo in Hedges A, B or C is removed, any replacement hedge planting is to be of a species that grows no taller than 3.8 metres, or is to be maintained below 3.8 metres in height.
The exhibits are returned, other than Exhibits A, B, D, 1 and 2.
……………………………….
D Galwey
Acting Commissioner of the Court
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Decision last updated: 06 October 2022
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