Williams v Brown

[2024] NSWLEC 1093

Land and Environment Court

New South Wales

Medium Neutral Citation:

Williams v Brown [2024] NSWLEC 1093

Hearing dates:

27 September 2023

Date of orders:

05 March 2024

Decision date:

05 March 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

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

(2) Within 30 days of the date of these orders, the respondents are to prune, or pay for a suitably qualified contractor to prune, all bamboo along the boundaries around their rear garden, so that the bamboo is no more than half a metre above the top of the fence at the north-western corner of the garden. To the south and east of this, they may maintain this level for the remainder of the hedge, or continue at half a metre above the fence as it extends downslope.

(3) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed – whether a root barrier should be installed

Legislation Cited:

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

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Macfadyen v Daley [2023] NSWLEC 1751

Steber v Job [2019] NSWLEC 1308

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

Zarate v Horton [2023] NSWLEC 1375

Category:

Principal judgment

Parties:

Richard Williams (Applicant)
Danielle Sandra Brown (First Respondent)
Nicholas John Hartley (Second Respondent)

Representation:

Counsel:
N Hammond (Applicant)
D Brown (Self-represented) (First Respondent)
N Hartley (Self-represented) (Second Respondent)

Solicitors:
Cordato Partners (Applicant)

File Number(s):

2023/228008

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Richard Williams (the applicant) has owned his Neutral Bay apartment since 2012. From his living room and balcony he has enjoyed views to the south, including a view of the Harbour Bridge, and east. Danielle Brown and Nicholas Hartley (the respondents) own the adjoining property to the south of Mr Williams. Behind their dwelling, their rear garden is surrounded by a paling fence on the common boundary, on the other side of which is a garden on the common property of Mr Williams’ strata plan. In 2015, the respondents removed 2 trees from their rear garden, after requests from the owner of the apartment above Mr Williams’ apartment. According to the applicant, in 2018 the respondents planted bamboo on their property along the boundary fence. The bamboo grew to obstruct his views.

2. Mr Williams 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. After they received a copy of the application, the respondents pruned the bamboo. The applicant amended the application to include orders for the bamboo to be pruned and maintained at a specified height, and for the respondents to install a root barrier along the boundary to prevent it spreading under the fence.

3. The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on views. Privacy and overlooking issues were observed at both properties.

Framework for this decision

4. The key jurisdictional tests in these Pt 2A proceedings are found at s 14E(2) of the Trees Act:

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) 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) 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.

Reasonable effort to reach agreement

5. The applicant and respondents communicated via email in January 2022. Ms Brown, the first respondent, told Mr Williams that they would prune the bamboo annually at the ‘agreed’ height of 5 metres. Mr Williams found the bamboo still obstructed his view. He emailed the respondents again in December 2022 and again in March 2023 . Despite these and further efforts, he found his attempts to discuss the bamboo’s height were unsuccessful. Mr Williams then applied to the Court. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents (s 14E(1)(a) of the Trees Act) and that the applicant gave the required notice of the application (s 14E(1)(b)).

The hedge

6. At s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. Jacki Brown, the arborist engaged by the applicant, described the bamboo as Fish-pole Bamboo (Phyllostachys sp.) or similar (Exhibit D), “planted on or before August 2019”. Given the placement of this bamboo hedge along the boundary around the respondents’ garden, it seems a reasonable assumption that it was planted. The respondents submitted, however, that the bamboo originated on the common property of the applicant’s strata plan, where it was most likely planted as a hedge. After the bamboo spread beneath the fence to their property, they effectively adopted it, then maintained it around the boundary. The applicant’s strata plan has since removed bamboo from their own property, so that a bamboo hedge that was planted on one property is now on another. In these somewhat unusual circumstances, I find that the bamboo was planted to form a hedge and still forms a hedge in the present (s 14A(1)(a) of the Trees Act): see Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28].

7. The hedge is more than 2.5 metres tall (s 14A(1)(b) and is on land adjoining the applicant’s property (s 14B), albeit separated by common property: see Macfadyen v Daley [2023] NSWLEC 1751 at [9]. At the time of the hearing, the hedge was approximately 3.8 metres tall near the highest corner (the north-western corner) of their property, more than one metre above the top of the fence. The applicant said the bamboo was more than 6 metres tall at the time he commenced these proceedings.

Whether the trees severely obstruct a view

8. Ms Brown, the arborist, went to the applicant’s property in April 2023, at which time she said the bamboo was 4–6 metres tall. She took photographs from the applicant’s living room and balcony. She found the bamboo caused a loss of 43% of the view available from the balcony and 44% of the view available from the living room. She found the bamboo obstructed the view of the Sydney Harbour and the waterline from the family room. She found it entirely obstructed the view of the Harbour Bridge from the balcony.

9. Ms Hammond submitted that the view obstruction was severe at the time of Ms Brown’s inspection. The view included iconic elements such as the Harbour Bridge. Ms Hammond submitted that the applicant previously had extensive views from his living room and balcony, including an uninterrupted view of the Harbour Bridge and Neutral Bay. Ms Hammond contended that the difficulty experienced by the applicant firstly communicating with the respondents, and secondly getting them to prune the hedge to a height that would restore his view, demonstrated the likelihood that the hedge would quickly grow into the view again, even if it was not severely obstructing the view at the time of the hearing due to recent pruning. The respondents submitted that they intend to prune that bamboo annually to the height seen at the time of the hearing.

10. The applicant provided photographs showing his uninterrupted view in 2016.

11. I accept that the applicant had valued views that were available for several years before being obstructed by the hedge. Despite Ms Brown’s calculations as to the percentage of view loss, I adopt the qualitative approach suggested by the principle at [25]–[29] of Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”):

“[25] The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

[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 views, 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 as negligible, minor, moderate, severe or devastating.

[29] The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.”

12. The Tenacity principle’s first three steps are often useful in proceedings brought under Pt 2A of the Trees Act. The applicant’s view includes the iconic element of the Harbour Bridge and Sydney Harbour. It was available from standing and sitting positions in high-use areas of the applicant’s apartment. The outlook from the living room and adjoining balcony is the dwelling’s principal outlook. Prior to the recent pruning, the overall impact of the bamboo was more than moderate but less than devastating – it was severe.

13. The severe obstruction continued for some time, until the respondents pruned the hedge after receiving a copy of the application in these proceedings. I am swayed by Ms Hammond’s submissions that the applicant cannot rely on a response from the respondents, let alone an agreement to maintain the hedge. It seems more than likely that the hedge will obstruct the applicant’s view again in the future. As in Steber v Job [2019] NSWLEC 1308, the situation is likely to be ongoing, so I find the bamboo is severely obstructing a view.

14. Before making any orders, I am required to consider the matters at s 14F of the Trees Act.

Consideration of other matters

15. The bamboo grows along the respondents’ boundary, a short distance from the applicant’s dwelling. It has grown on the respondent’s property, into the applicant’s view, during the applicant’s occupation of his property. Council consent would not be required to prune or remove the bamboo.

16. The bamboo contributes to the respondents’ landscape value and provides amenity within their property. Its contribution to other environmental values is not significant.

17. The respondents value the bamboo for its privacy. Their property is overlooked by the apartments in the large building upslope to their north and west. They submitted that reducing the bamboo’s height would allow significantly more overlooking. I observed at the applicant’s dwelling that a reduction in height of half a metre would make little difference from there, but might allow greater overlooking from apartments above. However it is the respondents’ garden that is affected, not any windows to their dwelling. Their garden is already overlooked by some apartments, so pruning or removing the bamboo would increase an existing overlooking issue rather than create one. It seems that a reasonable balance between the applicant’s view and the respondents’ privacy could be struck by pruning the bamboo half a metre above the top of the boundary fence at the north-western corner of their property. This allows for some regrowth before it is pruned again. The respondents submitted that they would prune the bamboo twice each year.

18. Although the respondents seemed resistant to pruning the bamboo until these proceedings commenced, they have pruned it since. During the onsite hearing, their declaration to maintain the hedge as needed for the applicant’s view seemed genuine. On that basis, it seems possible that these neighbours might find a more cooperative path forward that does not require orders for ongoing pruning of the bamboo. Orders will be made for pruning once to establish the height which the Court considers will best sustain the interests of both parties. Should that fail, and the dispute returns to Court, the respondents might study other hedge matters in which the Court has ordered removal of a hedge, rather than mere pruning: for instance, Zarate v Horton [2023] NSWLEC 1375.

19. The applicant seeks orders for the respondents to install a root barrier. This is refused. The land adjoining the respondents’ land is owned by a strata plan, not by the applicant. The respondents submitted, and I accept, that the bamboo first grew on the strata plan’s property to their north before spreading onto their own land. In these circumstances, it would not be appropriate to make orders for a root barrier to be installed.

Orders

20. The Court orders:

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

2. Within 30 days of the date of these orders, the respondents are to prune, or pay for a suitably qualified contractor to prune, all bamboo along the boundaries around their rear garden, so that the bamboo is no more than half a metre above the top of the fence at the north-western corner of the garden. To the south and east of this, they may maintain this level for the remainder of the hedge, or continue at half a metre above the fence as it extends downslope.

3. The exhibits are returned, except for Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 05 March 2024