Royle v Debelak

[2020] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:

Royle v Debelak [2020] NSWLEC 1354

Hearing dates:

29 July 2020

Date of orders:

11 August 2020

Decision date:

11 August 2020

Jurisdiction:

Class 2

Before:

O’Neill C

Decision:

The orders of the Court are:

(1)   The respondents are to prune the bamboo hedge along the southern boundary of their property to the height of the top of the chain wire tennis court fence located adjacent to the shared boundary on the applicant’s property, at a height of approximately RL48.86.

(2)   The pruning is to be undertaken within 90 days of the date of these orders.

(3)   The respondents are to maintain the bamboo hedge pruned to a height not exceeding the height of the top of the chain wire tennis court fence on the adjacent property on a regular basis.

(4)   The exhibits, other than Exhibit A, are returned.

Catchwords:

TREES (NEIGHBOURS) – bamboo hedge – severe impact on views

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

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

Category:

Principal judgment

Parties:

David William Royle (Applicant)
Marc Milan Debelak (First Respondent)
Suzanne Maree Debelak (Second Respondent)

Representation:

Counsel:
P Clarke (Solicitor) (Applicant)
S Latham (Solicitor) (Respondents)

Solicitors:
Hones Lawyers (Applicant)
Stuart Latham Solicitors (Respondents)

File Number(s):

2020/126794

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an application to the Court pursuant to the provisions of ss 7 and 14B of the Trees (Disputes Between Neighbours) Act2006 (Trees Act) for an order to remedy and prevent damage to the property at 7 Bushrangers Hill, Newport (the applicant’s property) as a consequence of a bamboo hedge situated on an adjoining property at 16 Gertrude Avenue, Newport (the respondents’ property); and for an order to prevent a severe obstruction by the bamboo hedge of views from the dwelling situated on the applicant’s property.

Issues

2. The applicant seeks orders pursuant to Pts 2 and 2A of the Trees Act to remedy, restrain or prevent damage to his property and to remedy, restrain or prevent a severe obstruction of any view from his dwelling (Ex A).

Description of the applicant’s and respondents’ properties

The applicant’s property at 7 Bushrangers Hill, Newport

3. The applicant purchased his property in 2016.

4. The applicant’s property is approximately 3,500sqm in area and contains a two-storey dwelling located on the southern portion of the property, with a tennis court and swimming pool to the north of the dwelling. The property falls to the north. The driveway entry to the property is at the north-western corner.

5. The two-storey dwelling has verandahs on both levels across the northern elevation. The tennis court surface is lower than the finished floor level of the ground floor of the dwelling. The tennis court has a chain wire fence along its northern, eastern and western sides and the top of the chain wire fence is higher than the balustrade on the ground floor verandah. The applicant submitted that the tennis court surface is at RL44.86 and the height of the chain wire fence is approximately 4m above the surface of the tennis court.

6. The applicant’s northern boundary is shared with the southern boundaries of the respondents’ property and the adjoining property to the west of the respondents’ property. There is a timber paling fence along the shared boundary with the respondents’ property, supported by metal posts. Some stems of the bamboo hedge have spread and are located on the applicant’s property.

7. The tennis court is closest to the property’s northern boundary at the north-eastern corner of the tennis court, which corresponds to the south-western corner of the respondents’ property. The natural topography of the hill falls to the north-west, so that the tennis court is raised above the natural ground level at its northern end.

8. From the applicant’s dwelling, there are distant views of Newport and Bilgola Beaches to the north-east over the tennis court, and district views across the saddle of the landform, towards the hill of the peninsula to the north and north-west.

The respondents’ property at 16 Gertrude Avenue, Newport

9. The respondents purchased their property in 2012.

10. The respondents’ property is to the north of the applicant’s property and is accessed via a driveway on the south-eastern corner of the property. The existing dwelling is located close to the southern boundary, with an area of private open space accessed from the dwelling on the eastern side of the dwelling and the rest of the property is a sloping lawn falling to the northern boundary.

11. From the dwelling, there are distant views of Newport and Bilgola Beaches to the north-east.

12. There is a mature and thick bamboo hedge located along the southern boundary of the respondents’ property, with a small gap in the hedge where there is a storage shed close to the boundary. The respondents submitted that the south-eastern corner of the site is at a level of RL41.73. The highest branches of the bamboo hedge are above the nearby top of the wire mesh tennis court fence on the applicant’s property. The ground falls gently from this corner to the other end of the hedge in the south-western corner of the property.

The bamboo hedge

13. The bamboo is Bambusa textilis Gracilis and 15 x 300mm plants were purchased in March 2013 (Ex 3) and planted along the southern boundary of the property. According to Mrs Debelak, the bamboo was at a height of 3-4 metres at the time she purchased the plants.

14. It was uncontroversial that the bamboo hedge is a group of two or more trees that are planted so as to form a hedge and the hedge is more than 2.5m above existing ground level, pursuant to s 14A of the Trees Act.

Jurisdiction of the Court

15. The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property as a consequence of the tree the subject of the application concerned, pursuant to s 9 of the Trees Act. The Court must not make an order under Pt 2 of the Trees Act unless it is satisfied of the matters under s 10 of the Trees Act, as follows:

(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 tree is 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 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property

16. Before determining an application made under Pt 2 of the Trees Act, the Court is to consider the matters listed under s 12.

17. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of any view from a dwelling situated on the applicant’s land, pursuant to s 14D of the Trees Act, if the obstruction occurs as a consequence of trees that are the subject of the application concerned. The Court must not make an order under Pt 2A of the Trees Act unless it is satisfied of the matters under s 14E of the Trees Act, as follows:

(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) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(i) …

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(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.

18. Before determining an application made pursuant to Pt 2A of the Trees Act, the Court is to consider the matters listed under s 14F.

Expert evidence

19. The applicant relied upon the expert planning evidence of Lance Doyle (Ex B) and the respondents relied on the expert planning evidence of Michael Haynes (Ex 2).

Consideration

20. I am satisfied, on the evidence before me, that the applicant has engaged with the respondents and made a reasonable effort to reach an agreement with the respondents regarding the pruning of the bamboo hedge, including, in February 2020, offering to carry out the pruning to, “tidy up the bamboo… and [the bamboo] being trimmed down a little whilst leaving full privacy to the rear of your place?” (Ex 1, p 8) and that negotiations continued up to and during the onsite hearing.

21. I am not satisfied on the evidence before me that the bamboo hedge has caused, is causing or is likely in the near future to cause damage to the applicant’s property. No evidence was adduced by the applicant regarding the structural integrity or otherwise of the existing fence. On inspection, the fence appeared to be in reasonable condition.

22. I am satisfied, on the evidence before me and from my own inspection of the applicant’s property at the commencement of the hearing onsite, that the bamboo hedge is severely obstructing the north-eastern view of the beaches from the dwelling.

23. I make the following findings with reference to the Tenacity planning principle (Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140) and the expert planning evidence. The upper portion of the bamboo hedge is obstructing iconic views of Newport and Bilgola Beaches and headlands, from the applicant’s dwelling, to the north-east. Views from the applicant’s property are obtained from all of the rooms and both levels of the verandahs on the northern side of the dwelling. The position of the applicant’s dwelling on the southern, high side of the property means that those views, particularly from the upper level, are unlikely to be impinged by any future development to the north of the property, because of the topography of the hill on which the property is located. The extent of the impact, on the entirety of the views for the whole of the property, is severe, because the bamboo hedge is obstructing the views of the beaches and headlands from both levels of the dwelling and the north-eastern view of the beaches from the property is highly valued as the jewel of the northern outlook across the peninsula.

24. I make the following findings with reference to the maters to be considered by the Court pursuant to s 14F of the Trees Act. The bamboo hedge is located along the southern boundary of the respondents’ property, on the highest part of the respondents’ property. On the basis of the photographic evidence before me, the severe obstruction of the view to the beaches from the applicant’s property has occurred since the applicant purchased his property. The bamboo hedge is of no ecological, scenic or heritage value and the bamboo hedge has no intrinsic value to public amenity. The bamboo hedge does not contribute to any natural features of the locality. Pruning the bamboo hedge will not affect the health of the plants as bamboo is well-known to be robust, hardy and difficult to eradicate.

25. I accept the respondents’ evidence and submissions that the bamboo hedge contributes to the amenity of their property. The bamboo hedge effectively conceals the chain wire tennis court fence close to the shared boundary and affords the respondents’ private open space visual privacy from the tennis court on the adjoining property, as the tennis court is raised well above natural ground level and is close to the shared boundary. I accept the respondents’ evidence that the bamboo hedge also contributes to the amenity of their property by providing a green backdrop. I accept the respondents’ submission that the bamboo hedge has been pruned to thin the hedge and this is evident when comparing the existing hedge to the photograph taken in April 2020 (Ex E).

26. Balancing the effectiveness of the bamboo hedge to ameliorate the impacts caused by the close proximity of the high chain wire tennis court fence to the shared boundary, the height of the tennis court above the respondents’ property and the impact of the tennis court on the amenity and privacy of the respondents property; against the severe impact of the bamboo hedge on the iconic views from the applicant’s property; it is my view that the fairest outcome is to require the bamboo hedge to be trimmed to the height of the top of the chain wire tennis court fence. I accept that, at this height, the bamboo hedge will continue to impinge on the views obtained from the ground floor of the applicant’s dwelling and the pool and tennis court, however, those views would be partially obstructed and compromised by looking through the chain wire tennis court fence and the primary living areas in the applicant’s dwelling are on the upper level and those living areas open onto a wide verandah across the full width of the northern elevation, from which the restored view can be fully appreciated.

27. I am satisfied that it is appropriate and lawful to require the bamboo hedge to be pruned and maintained at a similar height to the top of the chain wire tennis court fence. At this height, the bamboo hedge will not obstruct views from the applicant’s dwelling across the top of the tennis court and the chain wire tennis court fence to the beaches and headlands to the north-east; and the privacy and amenity of the bamboo hedge enjoyed by the respondents will not be compromised.

Conclusion

28. I am satisfied on the evidence before me that the applicant made a reasonable effort to reach agreement with the respondents on the matter of pruning the bamboo hedge.

29. It was uncontroversial that Part 2A of the Trees Act applies to the bamboo hedge, pursuant to s 14A.

30. I am not satisfied by the evidence before me that the bamboo hedge has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, pursuant to s 10(2)(a) of the Trees Act.

31. I am satisfied, on the evidence before me and from my own inspection of the applicant’s property at the commencement of the hearing onsite, that the top of bamboo hedge is severely obstructing the north-eastern iconic view of the beaches and headlands from the applicant’s dwelling.

32. I am satisfied that having the portion of the hedge that is causing the obstruction pruned (that is the top of the hedge above the chain wire tennis court fence) will not interfere with the amenity provided by the bamboo hedge to the respondents’ property. The bamboo hedge, when pruned, will be approximately 7m high (above the existing ground level at the base of the bamboo hedge in the south-eastern corner of the respondents’ property) and this will achieve the respondents’ purpose for the bamboo hedge to conceal the chain wire tennis court fence when viewed from the respondents’ property and to maintain the visual privacy of the respondents’ property.

Orders

33. The orders of the Court are:

1. The respondents are to prune the bamboo hedge along the southern boundary of their property to the height of the top of the chain wire tennis court fence located adjacent to the shared boundary on the applicant’s property, at a height of approximately RL48.86.

2. The pruning is to be undertaken within 90 days of the date of these orders.

3. The respondents are to maintain the bamboo hedge pruned to a height not exceeding the height of the top of the chain wire tennis court fence on the adjacent property on a regular basis.

4. The exhibits, other than Exhibit A, are returned.

____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 11 August 2020