Rimmington v Brinkworth

[2022] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rimmington v Brinkworth [2022] NSWLEC 1076

Hearing dates:

22 October 2021

Date of orders:

14 February 2022

Decision date:

14 February 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is granted to the extent of the orders below.

(2) Until the bamboo hedge along the respondents’ common boundary with the applicant’s property is removed, during March and September each year, beginning March 2022, the respondents are to prune, or are to engage a suitably insured landscape contractor or arborist to prune, the bamboo hedge along the respondents’ common boundary with the applicant’s’ property so that: the bamboo is no more than 2 metres above the top of the boundary fence; and all bamboo overhanging the applicant’s boundary is pruned back to the boundary line. The respondents are to remove any debris from the pruning in order (2) from the applicant’s property.

(3) The respondents are to give the applicant at least 2 days’ notice of each pruning event in order (2).

(4) The applicant is to allow access for each pruning event in order (2) during reasonable hours of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight and views – bamboo – whether the obstruction is severe – privacy – balancing of applicant’s access to sunlight and views with respondents’ privacy – pruning ordered

Legislation Cited:

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

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:

Davies v Penrith City Council [2013] NSWLEC 1141

Steber v Job [2019] NSWLEC 1308

Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:

Lake Macquarie Development Control Plan 2014

Category:

Principal judgment

Parties:

Carolyn Rimmington (Applicant)
Craig Brinkworth (First Respondent)
Alyta Brinkworth (Second Respondent)

Representation:

Counsel:
C Rimmington (Litigant in Person) (Applicant)
C Brinkworth (Litigant in Person) (First Respondent)
A Brinkworth (Litigant in Person) (Second Respondent)

File Number(s):

2021/180335

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: Carolyn Rimmington (‘the applicant’) and Alyta and Craig Brinkworth (‘the respondents’) are neighbours in Caves Beach, in the Lake Macquarie area south of Newcastle. Dwellings in their estate are cheek by jowl, as they are in many similar residential developments of the recent era, with limited private open space. The Brinkworths’ property is to the north of Ms Rimmington’s property, the common boundary they share being the rear boundary of each property. The back of Ms Rimmington’s two-storey dwelling, separated from this common boundary by her open space only a few metres wide, faces the back of the Brinkworths’ dwelling and overlooks, from the upper level, their back garden with their pool. For privacy, the Brinkworths grew a bamboo hedge along their side of this boundary. Ms Rimmington complained to the Brinkworths that the hedge, once it grew tall enough, obstructed sunlight to the back of her dwelling and views from her dwelling. Although the Brinkworths undertook some pruning, Ms Rimmington found the issue was not resolved. When they could not reach an agreement, Ms Rimmington 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 that would remedy the obstruction.

Framework for this decision

2. Before the Court can 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 on adjoining land 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 owners (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)). To determine this, relevant issues at s 14F must be considered.

3. If these tests are all satisfied the Court can make orders at s 14D as it sees fit to remedy, restrain or prevent a severe obstruction of sunlight to, or a view from, the applicant’s dwelling.

4. The hearing took place via MS Teams. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view. The parties were all self-represented.

The applicant made reasonable effort

5. When Ms Rimmington realised the bamboo was growing taller than she expected, she invited the Brinkworths to her dwelling to see the issue for themselves. Ms Rimmington submitted that the Brinkworths agreed to prune the bamboo, but failed to do so. She spoke with them again, and communicated via text message. The Brinkworths subsequently pruned the bamboo, but not to Ms Rimmington’s satisfaction. She arranged mediation, which all attended, but the Brinkworths were unwilling to prune the bamboo any lower. This history demonstrates to me that Ms Rimmington made reasonable effort to reach an agreement with the Brinkworths.

The bamboo is planted so as to form a hedge

6. Bamboo is a tree for the purposes of the Trees Act (cl 4 of the Trees (Disputes Between Neighbours) Regulation 2019). The Brinkworths planted young bamboo plants along their side of the boundary to form a screening hedge. They do not dispute that it forms a hedge. Ms Rimmington submitted that the bamboo reached up to 8 metres in height. The Brinkworths pruned it to 4.5 metres tall, but it has grown taller since then. It follows that Pt 2A of the Trees Act applies to the bamboo (s 14A(1) of the Trees Act).

The trees severely obstruct sunlight

The applicant’s position

7. Ms Rimmington submitted that the bamboo, when it reached 6–8 metres in height, obstructed all sunlight to her ground level windows during winter and early spring, and reduced sunlight to her upper level windows during this period. She said that even once the bamboo’s height was reduced to approximately 4.5 metres, sunlight access to her lower level windows was reduced, but to a level she could tolerate. However the obstruction increased as the bamboo regrew from that height.

8. For clarity, I note here that the respondents refer to three levels of the applicant’s dwelling: the lower, middle and upper levels. Ms Rimmington’s land slopes down towards the rear of her property. Her dwelling has split levels part way along the slope, so that its two storeys at the front are higher than the two storeys at the rear. It is only the two storeys at the rear that are affected by the bamboo and therefore referred to in this judgment.

The respondents’ position

9. The Brinkworths submitted that their bamboo does not obstruct sunlight to the upper level of Ms Rimmington’s dwelling, and that any obstruction to ground level windows is not severe. Ms Brinkworth wrote in her affidavit (exhibit 1) that the bamboo allows “dappled sunlight” to pass through.

10. Ms Brinkworth’s affidavit included photographs (Attachments 6.1 and 6.2) showing Ms Rimmington’s ground floor windows completely shaded by the narrow roof over a rear deck at this level. The photographs were taken from real estate advertising material and are undated. It is apparent from the angle of shadows that they were not taken during winter or early spring.

11. Other photographs (Attachments 2 and 3) in the affidavit show sunlight reaching parts of the windows on Ms Rimmington’s ground level. They also show shadow from the bamboo on the lower parts of the windows. The photos were taken by the Brinkworths on 13 July 2021 after they pruned the bamboo to a height of approximately 4.5 metres.

Findings

12. Ms Rimmington has not provided shadow diagrams. My assessment of sunlight obstruction relies on photographs and plans provided by the parties.

13. Certainly since the bamboo was pruned, it does not obstruct sunlight to Ms Rimmington’s upper level windows.

14. A photograph (Attachment 4.2) in Ms Brinkworth’s affidavit shows the bamboo after it was pruned in July 2021. The dense mass of the hedge reaches approximately the level of the railing on the second-storey verandah at the back of Ms Rimmington’s dwelling. Even at this height, its shadow falls across the bottom sections of windows W1, W2 and W3 on Ms Rimmington’s ground level, as shown in Attachments 2 and 3 of the affidavit. The bamboo regrows rapidly, as can be seen in the photographs at Attachment 4.2, where culms have already shot well above the top of the recently-pruned hedge. It would not be long after the bamboo was pruned that it might obstruct significantly more of the sunlight available to Ms Rimmington’s ground-floor windows. Furthermore, as Ms Rimmington’s photographs show, bamboo culms bend and extend across the boundary, almost reaching her dwelling. This would further increase the bamboo’s shade on these windows. As a result, for much of the time, other than immediately after pruning, most of the winter sunlight available to the ground-floor windows would be obstructed by the bamboo.

15. Prior to the Brinkworths’ pruning in July 2021, the bamboo appears to have obstructed all available sunlight to these windows. And even if they carry out periodic pruning to 4.5 metres, as per their declared intention, the general level of obstruction would be, in my mind, severe. As per the findings at [34]–[45] in Steber v Job [2019] NSWLEC 1308, this ongoing state of affairs – a severe obstruction of sunlight when sunlight would otherwise reach the windows – meets the jurisdictional test at s 14E(2)(a)(1) of the Trees Act: the trees are severely obstructing sunlight to a window of Ms Rimmington’s dwelling.

The trees are severely obstructing a view from the dwelling

The applicant’s position

16. Ms Rimmington submitted that views from her dwelling might not be iconic, but she enjoys this outlook. She said the view from her upper level includes the district landscape and small and distant water view. This view was obstructed when the hedge was 6–8 metres tall, but is not obstructed when the hedge is 4.5 metres tall. From her ground level, she had sky views, now obstructed by the bamboo even at its shorter height.

The respondents’ position

17. The Brinkworths submitted that there is no obstruction of a view from Ms Rimmington’s dwelling, other than of a view into their own dwelling and yard. They submitted that there is no iconic view, no view of water or shoreline.

Findings

18. Should the Brinkworths maintain their hedge at its current height, it appears unlikely that the view from Ms Rimmington’s upper level would be severely obstructed. The outlook from her ground level, however, would be obstructed by bamboo, and severely so. The boundary fence in this northern outlook is approximately 1.8 metres tall, being the fence height limit under local planning controls. Without the bamboo, one might see from the ground-floor back rooms and deck the top of the Brinkworths’ dwelling over the fence, but above that would be a broad expanse of sky, now obstructed by the bamboo. Such an outlook to the outside world should not be undervalued simply because it is not ‘iconic’.

Reasons against making orders

19. Before making any orders, the Court must be satisfied that the applicant’s interest in removing the obstruction of sunlight or a view outweighs the reasons to avoid interfering with the bamboo (s 14E(2)(b) of the Trees Act). This usually requires the weighing up of the applicant’s interests and the respondents’ interests. To assist, s 14F sets out matters that must be considered by the Court. I discuss those that are relevant below.

Location of the hedge

20. The bamboo is planted along the respondents’ side of the boundary. Ms Rimmington’s photographs show the bamboo’s culms closest to the boundary bending over the boundary and almost reaching across the 3-metre space to her dwelling.

When the hedge grew

21. The Brinkworths planted the hedge in 2018, well after Ms Rimmington bought her property in 2014. The bamboo has grown taller than 2.5 metres since then, and obstructs sunlight and views that were available to Ms Rimmington before it grew.

Council consent

22. Pruning the bamboo would not require permission from Lake Macquarie City Council

Conditions of development consent

23. The Brinkworths submitted that Ms Rimmington’s dwelling does not comply with setback requirements under the Lake Macquarie Development Control Plan 2014 (‘the DCP’), resulting in greater overlooking and the need for the hedge. No evidence of this was provided. If it were the case, it would not prevent me making orders here. Overlooking issues and privacy must be considered here, as they are below, whether or not a dwelling complies with current development standards.

Benefits of the bamboo

24. The bamboo’s value extends little beyond its benefits to its owners. It does not contribute to public amenity; it provides little in the way of environmental benefits. It contributes to the landscape value of the Brinkworths’ garden, but its main benefit for them, as they submitted, is the privacy it affords them by providing a visual screen between their property and Ms Rimmington’s dwelling.

Privacy

25. From the north-facing windows on Ms Rimmington’s upper level, one can see the upper level of the Brinkworths’ dwelling. Without the bamboo’s screening, one would also see windows on the Brinkworths’ ground level, their backyard and their pool. The Brinkworths submitted that they have compromised by pruning the hedge to 4.5 metres tall, but they are unwilling to prune it lower. Ms Brinkworth wrote in her affidavit (at para 30) that pruning the hedge lower would expose their pool, outside shower and living rooms to overlooking from the applicant’s second-storey deck and living areas. She wrote (at para 31) that “…the measures we have taken are not unusual and should be reasonably expected with a high-density development, such as the applicants [sic].”

26. The provision of privacy is important. It is considered at the broad level within the planning framework, and at the individual level when dwellings and landscapes are designed. The same is true for sunlight access and view sharing. The Brinkworths’ argument that they have been reasonable might ring true when only their privacy is considered, but clearly Ms Rimmington sees it differently. Fences alone cannot provide sufficient screening between two-storey dwellings in a development such as this. Screening, often a requirement on the upper level of a dwelling to prevent overlooking, is not part of Ms Rimmington’s dwelling. Landscaping can and should be used to provide some privacy, but should not cause greater disadvantage to a neighbour than the benefits it gives its owner. Landscaping cannot necessarily cure poor planning. The Brinkworths’ hedge might be reasonable if Ms Rimmington’s dwelling had been set back further from the common boundary, so that the hedge did not obstruct sunlight, but that is not the case.

27. The reasonableness of the current situation cannot be assessed mathematically. It requires a qualitative assessment of the two issues: the Brinkworths’ privacy and the Ms Rimmington’s access to sunlight and views. In Davies v Penrith City Council [2013] NSWLEC 1141 at [121], Senior Commissioner Moore (as his Honour then was) revised an earlier planning principle as follows:

“Revised planning principle: criteria for assessing impact on neighbouring properties

The following questions are relevant to the assessment of impacts on neighbouring properties:

How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?

How reasonable is the proposal causing the impact?

How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?

Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?

Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?”

28. Moore SC’s revision changed the second question from “How necessary is the proposal causing the impact?” to “How reasonable is the proposal causing the impact?” To some extent, the assessment of reasonableness relies on experience. The Court has considerable experience hearing matters under Pt 2A of the Trees Act and has seen the friction between privacy and sunlight, or privacy and views, up close on numerous occasions. Of course each situation is unique, but some common features might be found in otherwise dissimilar matters. In Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462, despite the very different circumstances, a neighbouring hedge valued by the respondents for the privacy it gave them obstructed the only sunlight available to the applicant’s window. There I found that the situation warranted orders to remove the obstruction, despite the resulting loss of privacy to the respondents. My assessment of reasonableness considered that the applicant had no alternative means for addressing the sunlight obstruction other than getting the hedge pruned or removed, whereas the respondents had alternative solutions for gaining privacy, including curtains, screens or other landscape plantings not located against the boundary.

29. In the matter before me now, the respondents referred to the DCP’s solar access guidelines at clause 3.10 of part 3, submitting that Ms Rimmington received three hours of mid-winter sunlight to at least 50% of her windows. I’m not sure if that is accurate, but even if it is, the Brinkworths rely on the short period following the bamboo’s pruning for their assessment. The sunlight obstruction increases as the bamboo grows. The Brinkworths did not refer to other parts of the DCP, perhaps equally relevant. Section 4 of part 3 of the DCP ‘Visual Privacy’ includes in its objectives: “To maximise outlook, views and natural surveillance without compromising visual privacy.” Controls for gaining privacy include planter boxes, screens and the like, with the aim of screening at least 50% of the principal private open space from a higher dwelling. The controls stress that landscape planting should not be solely relied upon for privacy.

30. Importantly, at clause 4.6 of part 3 of the DCP, rear fence height is limited to 1.8 metres. While gaining privacy by landscape plantings might be reasonable, the current situation results in a solid green wall along the rear boundary, 4.5 metres tall and less than three metres from Ms Rimmington’s north-facing windows. She has no alternative means for gaining access to sunlight here. The Brinkworths, on the other hand, could establish other plantings for privacy, further from the boundary. They could use screens around their pool and outdoor shower. They could use curtains or blinds on their windows. It is not that wanting privacy or planting a hedge is unreasonable – it is that the hedge along and overhanging the boundary where it severely obstructs sunlight to Ms Rimmington’s windows imposes an unreasonable loss upon their neighbour.

Nature of the obstruction

31. During and each side of summer, Ms Rimmington’s second-floor balcony obstructs sunlight to her ground-floor windows. The hedge is evergreen, providing a dense screen throughout the year. During winter, when sunlight to these windows is most in demand, it seems that the bamboo creates the principal obstruction of sunlight. It obstructs sunlight to these windows for most of the day during winter. The bamboo is also the principal cause of the view obstruction from Ms Rimmington’s ground floor windows and deck. These are living areas of Ms Rimmington’s dwelling, likely to receive frequent use.

Steps taken by the parties

32. Ms Rimmington seems to have done all she can to gain greater access to sunlight and views. The Brinkworths have pruned the bamboo to reduce the obstruction but are unwilling to prune the bamboo any lower.

Other matters

33. Ms Rimmington’s application included other issues: the bamboo’s effects on the health of a person who was under her care; the bamboo’s impacts to her own garden; and the dampness and mould resulting from the bamboo’s sunlight obstruction. She did not press these matters during her submissions to the Court and some do not fall within the jurisdiction of Pt 2A of the Trees Act. Although I could consider them at s 14F(s) of the Trees Act, they do not form part of my reasons for this decision.

Orders for pruning

34. I have found that the Brinkworths’ bamboo severely obstructs sunlight to windows of Ms Rimmington’s dwelling, and views from her dwelling. In particular, her enjoyment of her property is most impacted by the loss of sunlight during winter. Balancing the impacts to Ms Rimmington on one hand, and the impacts of making orders to reduce or remove the obstruction, I find Ms Rimmington’s access to sunlight should prevail here. As stated above, she has no other way of gaining sunlight access to these windows. The Brinkworths have other means for gaining privacy; other means for curing the overlooking issues resulting from the layout of these dwellings.

35. Ms Rimmington submitted that she finds she has sufficient sunlight and view access when the hedge is 4.5 metres tall, even though it still obstructs some winter sunlight. Although the Brinkworths state that they are willing to prune it to that height regularly, the issue I see is that the bamboo grows so quickly that to maintain it that height while pruning it no lower would require the onerous task of pruning at short intervals. I find it would be a reasonable outcome, striking a balance between sunlight and view access for Ms Rimmington and privacy for the Brinkworths, for the hedge to be pruned regularly below approximately 4 metres in height. This will allow for regrowth between pruning events. The Brinkworths did not explain the reference point for measuring the bamboo’s height – it appears to be planted in a raised bed along the boundary. From her side of the fence, it would be difficult for Ms Rimmington to know if the hedge is pruned to a specified height above ground. Therefore the top of the fence should be used as a reference point to avoid future disputes, with the bamboo to be pruned so that it is no more than 2 metres above the top of the fence. Overhanging bamboo contributes to the obstruction, so pruning it back to the boundary will also be ordered. Ms Rimmington expressed her willingness to allow the Brinkworths access to her property for this purpose. Pruning will be ordered every 6 months. If the pruning orders seem onerous, I note that they do not differ greatly from the Brinkworths’ stated intentions made during submissions, the lower height ordered here being the major difference.

Orders

36. As a result of the foregoing, the Court orders that:

1. The application is granted to the extent of the orders below.

2. Until the bamboo hedge along the respondents’ common boundary with the applicant’s property is removed, during March and September each year beginning March 2022, the respondents are to prune, or are to engage a suitably insured landscape contractor or arborist to prune, the bamboo hedge so that: the bamboo is no more than 2 metres above the top of the boundary fence; and, all bamboo overhanging the applicant’s boundary is pruned back to the boundary line. The respondents are to remove any debris from the pruning in order (2) from the applicant’s property.

3. The respondents are to give the applicant at least 2 days’ notice of each pruning event in order (2).

4. The applicant is to allow access for each pruning event in order (2) during reasonable hours of the day.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 February 2022