Zada v Tang

[2023] NSWLEC 1100

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zada v Tang [2023] NSWLEC 1100

Hearing dates:

07 December 2022

Date of orders:

08 March 2023

Decision date:

08 March 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.

(2) During April of 2024 and during April of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.

(3) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works

(5) The tree removal works shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of sunlight to a window – balancing views and privacy – no genuine damage as a result of hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Pt 2 s 7, 8, 10, 12, Pt 2A s14A, 14B, 14C, 14D, 14D, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2014

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

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

Tooth v McCombie [2011] NSWLEC 1004

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Parramatta Development Control Plan 2011

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

George Zada (Applicant)
Jianzhong Tang (First Respondent)
Shuhong Cheng (Second Respondent)

Representation:

G Zada, (Self-represented) (Applicant)
J Tang (Self-represented) (First Respondent)
S Cheng (Self-represented) (Second Respondent)

File Number(s):

2022/257643

Publication restriction:

No

Judgment

1. COMMISSIONER: George Zada, (the applicant), and Jianzhong Tang and Shuhong Cheng, (the respondents), share a common rear boundary between their properties in Constitution Hill. The respondents occupied their property in 2008, while the applicant purchased his land in 2016, sub-divided it into three relatively wide but shallow blocks, built his dwelling on one of the blocks in 2020 and 2021, and occupied the dwelling in July 2021, soon after its completion.

2. Consequently, Mr Zada’s backyard, located to the north of his dwelling, is about 15 metres (m) wide but only about 6 m deep. A steel panel back fence, approximately 1.8 m tall on the applicant’s side, separates the parties’ properties. The shared boundary runs from east to west and the respondents’ land is to the south of the applicant’s property.

3. It appeared that the natural gentle downward slope from south to north had been modified on the applicant’s land to provide a fairly level surface. The level of the respondents’ rear yard was about 400mm lower than that of the applicant’s yard.

4. The respondents noted that a large tree had been growing and providing privacy in their back yard when Mr Zada purchased his land, but it was removed in November 2017, prior to the respondents constructing a new dwelling.

5. On 5 July 2020, during the applicant’s house construction, the respondents planted Bambusa textilis var. Gracilis (Slender Weaver’s Bamboo) parallel with and close to their rear boundary, to improve their privacy and the aesthetics of their yard. The respondents note being particularly concerned about potential oversight by the applicant’s family, especially from a first-floor attic window, and they stressed the importance of privacy in their back yard.

6. The bamboo grew quickly, as is its nature, and a photograph supplied by the respondents, dated 12 March 2021, displayed that the main body of the bamboo had reached a height of about 2.2 m with emergent young culms (stems) protruding up to a height of about 3.5 m. By the hearing in December 2022, the bamboo had formed a dense visual barrier averaging about 4.8 m in height, with emergent young culms reaching a height of about 5.5 - 6 m above ground level.

7. As a consequence, Mr Zada submitted an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act).

8. The application under Pt 2 of the Trees Act relates to alleged damage to garden beds, competition from bamboo roots said to inhibit the growth of vegetables, and mess from leaves and leaf sheaths falling onto his land as a result of the bamboo. Mr Zada also notes sleep disturbance from the bamboo bumping or brushing on the fence, and apprehension that the bamboo will damage the fence in future.

9. Under Pt 2A of the Trees Act, Mr Zada claims that the respondents’ bamboo forms a hedge which severely obstructs views to north from his dwelling, and severely obstructs sunlight to windows of his dwelling and to his back yard, particularly during winter. The applicant adds that the lack of sunlight contributes to saturation of his lawn.

10. Mr Zada proposed the following orders for both parts of the application:

1. Remove the bamboo hedge along the boundary.

2. Install a barrier to prevent any roots protruding underneath the fence into our property.

The onsite hearing

11. The hearing commenced with both parties present for an inspection of the rear yard of the respondents’ property. All the bamboo planted along the respondents’ rear boundary was included in the application under both Pt 2 and Pt 2A of the Trees Act. Mr Zada described the bamboo as “100+ trees on boundary” but it appeared to comprise about 15 clumps.

12. The Court next assembled in the applicant’s back yard where the impact of the bamboo was assessed, prior to oral submissions. The application under Pt 2A of the Trees Act will be addressed initially.

Jurisdictional requirements – Part 2A

13. The Court’s jurisdiction under Pt 2A of the Trees Act is limited. The Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22].

Do the trees form a hedge?

14. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?

15. Section 14A(1) states:

(1) This Part applies only to groups of two 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).

16. The bamboo was planted in 2020 in a linear configuration, with clumps relatively close together. They now range from about 4.5 – 6 m in height. Bamboo is deemed to be a tree under the Trees (Disputes Between Neighbours) Regulation 2014.

17. As a consequence, I am satisfied that the bamboo was planted so as to form a hedge, and thus s 14A(1) of the Trees Act is satisfied.

18. Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

19. The applicant owns his property and claims that views from his dwelling are severely obstructed by the respondents’ hedge, and that the hedge also severely obstructs sunlight to at least one window of his dwelling. This satisfies s 14B of the Trees Act.

20. Mr Zada has also satisfied s 14C of the Trees Act, requiring notice of the application for order to be given to owners of affected land. Section 14D of the Trees Act details the Court’s jurisdiction to make a broad range of orders.

21. Section 14E(1)(a) of the Trees Act requires that the applicant makes a reasonable effort to reach agreement with the owners of the land on which the trees are situated.

22. The applicant visited the respondents’ property and asked for removal of the bamboo, but the respondents refused because they valued the bamboo for privacy and said they had put in a root barrier/ guard when they planted the bamboo.

Did the applicant make a reasonable effort to reach agreement?

23. Mr Cheng and Ms Tang submitted that Mr Zada had not made a reasonable effort to reach agreement with them. They noted that the applicant had made only two unannounced visits to their property, the second of which they said was distressing as a result of Mr Zada’s conduct, which they perceived as abrasive and confrontational, and they considered Mr Zada’s demands to be unreasonable.

24. While I don’t make my final decision regarding satisfaction of 14E(1)(a) until before I make an order, I refer to Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280 (Robson) where Preston CJ provides extensive guidance to the ‘reasonable effort’ required to satisfy the Act. At [195] of Robson, his Honour notes that:

“The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

25. The requirement under 14E(1)(a) of Pt 2A of the Trees Act is the same as that under s 10(1)(a) of Pt 2 of the Trees Act. His Honour provides a framework for consideration of this requirement at [191]-[194] of Robson.

"Reasonable effort to reach agreement

191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: “[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.”: para 1.13, p 7.

192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33.

193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission’s recommendation of giving notice before taking court action.

194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."

26. Consequently, the requirement to make “a reasonable effort to reach agreement” does not prescribe that a person must be polite in their conduct, or negotiate in a particular manner, nor that they must seek to compromise. Therefore, I am satisfied that s 14E(1)(a) of the Trees Act is engaged.

Is the obstruction of sunlight or views severe?

27. Next, the jurisdiction requires assessment of the severity of the obstruction of sunlight to a window of the applicant’s dwelling, or all or any of the views from the dwelling, as a consequence of any or all of the trees in the hedges. I will initially consider obstruction of views.

28. Section 14E(2)(a) states:

(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.

Obstruction of views

29. The applicant’s nominated viewing points are from a west facing sliding glass door of a living/ dining room to the west of the dwelling (V1/ W1), from a north facing window from the same living/ dining room (V2/ W2), and from a north facing window further to the east from the same living/ dining room (V3/ W3).

30. At question 9 of his Tree Dispute Claim Details (Form G), Mr Zada submitted that “Situated on a hill, the dwelling was designed to have views of the northern aspects of the district and skyline. The bamboo hedge is very unsightly from each of these windows and takes up more than half of the view of the district and skyline”.

31. At the hearing, and from analysis of the applicant’s site diagram which showed spot levels around the site, it was evident that the applicant’s land sloped gently downhill from south to north by no more than about 400mm, and the shallow, wide back yard appeared to be close to level. Further, the ground-floor level of the applicant’s dwelling was only marginally higher than the level of the back yard.

32. Consequently, there was no sense that the dwelling was situated on a hill, and thus the continuous 1.8 m high steel panel fence along the shared boundary less than 6 m from the dwelling precluded visual access to the majority of district and skyline views.

33. The respondents’ land was narrower than the applicant’s, perhaps two thirds as wide, and thus there was no bamboo that may otherwise obstruct views across the eastern third of the applicant’s northern boundary. Views of sky were readily available to the east and west of the hedge and above the hedge, and views of canopies of various large and medium sized trees were also available, mainly from V1 but also from V2 and V3. In the absence of the hedge, additional views available to the applicant would be obstructed by the roof of the respondents’ dwelling.

34. The first three steps of the four-step process on view sharing, published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), are often used to assist view assessment under Part 2A of the Trees Act.

35. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. Iconic views are particularly valued.

36. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic.

37. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is considered useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

38. At ss 14F(q), the Trees Act requires consideration of “the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view”. From the applicant’s property, there is a land view which does not contain outstanding buildings or other features. Because of the presence of the fence, skyline/ horizon views are unavailable to Mr Zada, even in the absence of the hedge.

39. Conversely, the presence of the hedge does not make much impact on the availability of sky and district views of houses and trees when one looks to the west through to north-west, over the top of the hedge, and towards the north, north-east round around to east north-east, where no bamboo or other obstructions are present.

40. Mr Zada also contemplated future obstruction of views in his application, but this is not relevant. While s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word “are” in s14E(2)(a)(ii), requires the trees the subject of the application to be severely obstructing views at the time of the hearing. See Tooth v McCombie [2011] NSWLEC 1004 at pars [14]-[15].

41. Mr Zada’s potential views currently obstructed by the hedge are from his living areas and across his rear boundary, both of which are prioritised in Tenacity. Nonetheless, the fact that the total potential sky and district views are reduced only to a moderate extent, at worst, by the presence of the hedge, means that the impact of view obstruction is not severe. Rather, it is minor to moderate. Therefore, this element of the application is refused.

Obstruction of sunlight

42. With respect to obstruction of sunlight, the applicant nominated the same windows W1 – W3 as nominated for view obstruction, and W4, from a north facing bedroom window at the dwelling’s eastern end. W4 was considered less relevant than W1 – W3 as it was a bedroom window, the significance of which is discounted as bedrooms are deemed as mainly for sleeping. Mr Zada acknowledged this in his application.

43. Notwithstanding that the Parramatta Development Control Plan 2011 - 3.35 Solar access and cross ventilation - Design Principle P.2 prescribes that “detached single and two storey, dual occupancy and townhouse dwellings within the development site and adjoining properties are to receive a minimum of 3 hours sunlight in the primary living area, and in at least 50% of the private open space between 9am and 3pm on 21 June”, the Trees Act considers only the obstruction of sunlight to a window of a dwelling.

44. The applicant, at question 4 of form G, noted the amount of sunlight lost during winter from W1 as 6 hours from noon to 6pm, 6 hours from 10am to 4pm from W2, 6 hours from 7:30am to 1:30pm from W3, and 2.5 hours from 1:30pm to 4pm from W4. However, Mr Zada provided no evidence, such as shadow diagrams, to support his findings. Based on the relative locations of the windows and the hedge, these timing estimates appear both inaccurate and exaggerated.

42. Nonetheless, because of the location of the hedge north of W2 and W3, based on the fact that the main body of the hedge now forms a dense barrier to sunlight, the sun’s low northern arc during winter, and the proximity of the hedge to these windows of the applicant’s dwelling, I am satisfied that the bamboo severely obstructs sunlight to a window of the applicant’s dwelling. Consequently, the bamboo hedge enlivens the Court’s jurisdiction at s 14E(2)(a)(i) of the Trees Act.

Whether the severity of the obstruction outweighs other matters?

46. As s 14E(2)(a)(i) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). The subsection states:

(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.

47. In order to determine the balance inherent in this subsection, relevant matters in s 14F must be considered:

1. The hedge is located in the respondents’ property, parallel and close to the common boundary, which is in close proximity to the applicant’s dwelling (s 14F(a)).

2. The bamboo was planted in 2020, before the applicant’s occupation (s 14F(b)).

3. The bamboo has grown to its current height since that time (s 14F(c)).

4. Bamboo is exempt from City of Parramatta Council’s Tree Management controls (s 14F(d)).

5. The bamboo does not have any historical, cultural, social or scientific value that is worthy of consideration (s 14F(f)).

6. Being neither a flowering tree, nor endemic, the hedge is likely to make only a minor contribution to biodiversity (s 14F(g)).

7. The bamboo provides a contribution to the scenic value of the respondents’ land (s 14F(h)).

8. The bamboo is not sufficiently prominent to make a contribution to public amenity (s 14F(i)).

9. The bamboo would likely provide benefit with absorption of stormwater, and the respondents note its role in stabilising the soil, particularly due to difference in levels between the properties’ (s 14F(j)).

10. Though the applicant sought removal of the bamboo, the level of sunlight to dwelling windows impacted by the hedge can be improved by pruning and maintaining the bamboo at a height which allows for the retention of the bamboo’s important privacy and aesthetic contributions for the respondents. While regular pruning is not ideal, it can be pruned lightly relatively regularly to maintain height without unduly affecting its health or function. Slow, long duration supplementary watering in dry summers should help the bamboo compensate for stress that may result from pruning. The relatively short length of the hedge will also not create an unreasonable maintenance burden for the respondents The hedge is evergreen (ss 14F(k)(p)).

11. The hedge makes a significant contribution to the respondents’ privacy. Given the size and position of the applicant’s dwelling, and sightlines between the two dwellings, the bamboo softens the landscape and provide visual screening. It also enhances the landscape design and ambience of the respondents’ garden and may suppress smells and noise (s 14F(l)).

12. The broad low roof over the applicant’s entertainment area blocks sunlight to windows, but the hedge provides the primary obstruction (s 14F(m)).

13. Neither party has taken action to rectify the obstruction (s 14F(n)).

14. As the hedge is to the north of the applicant’s windows (W2 and W3), the obstruction of sunlight is greatest in winter. The amount of sunlight lost to nominated windows was difficult to accurately estimate, as I lacked confidence in the veracity of the times provided by the applicant at question 4 of Form G, and the hearing was held in summer when ample sunlight was available (s 14F(o)).

15. Subsection 14F(q) is considered above at [38].

16. The sunlight obstruction particularly impacts W2 and W3 at the rear of the applicant’s dwelling (s 14F(r)).

Jurisdictional requirements – Part 2

48. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land.

49. The Court is obliged to consider various matters pursuant to s 10 of the Trees Act.

50. Section 10(1)(a) of the Trees Act, requiring a reasonable effort by the applicant to reach agreement with the owner/s of the land on which the tree is located is satisfied. It is the same requirement already met at 14E(1)(a) of Pt 2A of the Trees Act.

51. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property or is likely to cause injury to any person.

The applicant’s damage claims

52. At question 4 of his Tree Dispute Claim Details (Form H), Mr Zada claimed that “roots of the bamboo hedge are protruding across into our property” making planting of vegetables difficult, and that “we are continuously failing at trying to keep our private courtyard free of (leaf) sheaths” that fall or blow onto the applicant’s land. Mr Zada alleged that “There has been no barrier put in place” by the respondents to prevent bamboo roots encroaching across the common boundary, and that root competition and impaired solar access made the growing of vegetables difficult.

53. The applicant also claimed that his back lawn had “become a dampened swamp without the solar access that it was designed to have”. Mr Zada also notes sleep disturbance from the bamboo bumping or brushing on the fence in the wind, and apprehension that the bamboo will possibly affect the structural integrity of the fence in the future.

Findings

54. At [166] of Robson, discussing the issue of damage to "property on the land", his Honour said:

“Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act 2006.”

55. There was no genuine evidence of root incursion into the applicant’s property, or root competition of any significance, and nor is it likely, given that the bamboo is of a clumping rather than a rhizomatous (running) variety, and is planted about 400mm lower than the level of the applicant’s land. Mr Zada made no claim that bamboo culms had emerged onto his land.

56. There is no remedy available under the Trees Act from either foliage or roots encroaching across property boundaries unless they also cause damage, and as noted above at [166] of Robson, “…drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act 2006”.

57. In urban areas, it is natural for roots to cross property boundaries, and it is not a reasonable expectation that root barriers need be installed to prevent this, unless damage has occurred or is likely in the near future. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. I am not satisfied such damage has occurred or is likely in the near future.

58. Though the bamboo may contribute to drying of the applicant’s soil, the applicant provided no evidence of consequential damage that could not be easily remedied. It appeared that the applicant had not adequately employed typical practices in their garden beds to enhance soil conditions for the growth of vegetables. There was no evidence of incorporation of organic matter such as compost or animal manures into or onto the soil, and the surface soil in garden beds appeared hydrophobic. This common soil condition which inhibits water infiltration may be readily remedied by the application of wetting agents. There was no evidence of damage to fruit trees, crops or ornamental gardens.

59. As to the leaf sheaths on the applicant’s land, at [171] of Robson, his Honour notes that:

“leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

60. With respect to the maintenance required to clear leaves from the courtyard, at [172] of Robson, his Honour refers to Barker v Kyriakides [2007] NSWLEC 292 (Barker), noting that the shedding and dropping of such material, ordinarily “will not provide the basis for ordering the removal of or intervention with an urban tree.”

61. In Barker, at [20], Moore C, Hussey C and Fakes AC introduced a tree dispute principle to address the questions of what might be regarded as ordinary maintenance and the interaction between residents and trees in an urban environment. This tree dispute principle states:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment.”

62. Based on this tree dispute principle in Barker, and his Honour’s interpretation in Robson, in this situation, where the relative level of required maintenance would be considered to be minor, no redress is available under the Trees Act.

63. As to Mr Zada’s claim that the lawn was a “dampened swamp” due to a lack of sufficient sunlight, the Trees Act provides no right to solar access to gardens. At the hearing, the turf was healthy and dense and showed no indications of saturation, even though about double Sydney’s average rainfall was recorded in 2022. The photographs provided with the application, apparently taken during winter prior to lodgement of the application on 30 August 2022, show the lawn in a similar good condition. Ironically, the bamboo may reduce lawn saturation by drying the soil.

64. Regarding the fence, the respondents acknowledge that a loose metal fitting had caused noise during windy periods but that this had been easily rectified. While the bamboo may create brushing or bumping noise during heavy winds, this is to be expected in urban areas, particularly where dwellings are close to fences. Some people may be upset by creaking or other noises emanating from vegetation, while other people gain pleasure from noises associated with trees blowing in the wind. Again, this is a normal part of living in urban areas and research suggests that proximal vegetation enhances human well-being. It is also relevant that Mr Zada chose to install a metal panel fence, rather than an alternative such as timber which may be less likely to amplify sound.

65. Finally, while Mr Zada may fear that the bamboo “roots will eventually affect the structural integrity of the fence”, there is no evidence to support that this is likely in the near future, or even in the medium term.

66. As a consequence of these myriad claims being considered and dismissed, s 10(2) of the Trees Act is not engaged. Therefore, I have no powers to make orders arising from the application under Pt 2 of the Trees Act.

67. Even if I am wrong, and s 10(2) of the Trees Act had been satisfied, the Court is required to consider the discretionary matters in s 12 of the Trees Act, so as to provide balancing of the bamboo’s attributes and benefits, against the imperatives informing intervention. In this case, relevant discretionary elements under s 12 of the Trees Act were considered at s 14F under Pt 2A of the Trees Act, and do not need reconsideration.

Conclusion

68. The bamboo forms a wall-like screen which I am not satisfied is causing a severe obstruction of views from the applicant’s dwelling. I am, however, satisfied that the hedge is responsible for a severe obstruction of sunlight to either or both W2 and W3 of the applicant’s dwelling. Given that this species of bamboo may be expected to grow to a height of about 8 m once fully established, intervention is required on a regular basis to alleviate the severe sunlight obstruction and to prevent the obstruction from becoming more severe.

69. The level of sunlight that the Mr Zada regains may be less than he desires but given that the application made under Pt 2 of the Trees Act failed to engage the requirements of the jurisdiction, there is no basis to justify the removal of the bamboo.

70. The respondents’ desire for privacy in their back yard and in the rear of their dwelling is reasonable and is the most common justification for the retention of hedges arising from applications under Pt 2A of the Trees Act, where orders are sought for removal.

71. While the applicant may find the hedge to be “very unsightly”, the respondents value its aesthetic contribution, and other attributes provided by the barrier that the bamboo provides between the properties.

72. During spring, summer, and autumn, when the arc of the sun is higher in the sky, the obstruction of sunlight by the hedge will be less severe.

73. A reasonable level of sunlight in winter can be restored to the applicant’s rear windows by pruning the hedge each April. Minimal regrowth is likely until the following spring. This species can normally be pruned annually to maintain height without unduly affecting its health or function.

Orders

74. The orders of the Court are:

1. Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.

2. During April of 2024 and April of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.

3. All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

4. Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works.

5. The tree removal works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Amendments

08 March 2023 - Removal of e-signature

Decision last updated: 08 March 2023