Ball v Bahramali and Anor

Background

1. I have deemed the Affidavit of Robert Thomas dated 20 March 2018 as Exhibit 1 and its appendices as 1A to 1O.
2. The applicant, Malinda Rutter Peters, has lived at the site since 2010. The respondents, Mr and Mrs Thomas, purchased the next-door property, which is to the northwest of the applicant's property, in October 2011.
3. As at May 2012, based on a landscape plan by Imperial Landscapes Pty/ Ltd (Appendix 1C), the main trees that provided screening to the Thomas' property from that of Ms Peters were an Araucaria heterophylla (Norfolk Island Pine), a Jacaranda mimosifolia (Jacaranda), a Howea forsteriana (Kentia Palm) and 2 Liquidambar styraciflua (Liquidambar).
4. Based on the 'Tree management and protection zones' from this landscape plan, The Jacaranda was approximately 9 metres (m) tall with a canopy spread of approximately 3m, and grew to the north of and near the Norfolk Island Pine (approximately 22m x 6m) which is located in the southern corner. Further to the north, the Kentia Palm was approximately 10m x 4m. The 2 Liquidambars, approximately 13m x 8m and 13m x 11m respectively, grew only a few metres from each other, close to the northern boundary and approximately 9m west of the rear eastern boundary of the property which borders the applicant.
5. In April 2012, Woollahra Municipal Council granted the Thomas' development consent to demolish their residence and build a new dwelling. During 2012-2013, through a series of development application variations, along with permission in accordance with Council's Tree Preservation Order, they also gained approval to remove all trees on the property, with the exception of the mature Norfolk Island Pine.
6. In November 2013, Mr and Mrs Thomas were granted approval of a landscape plan by Rolling Stone Landscapes (appendix 1G) which included the planting of a screen comprising 33 individual Bambusa sp. (Bamboo) plants along the rear property boundary. This screen was planted in 2014.

The site inspection and hearing

1. The hearing commenced on site. Under the Act, Bamboo is considered 'a tree', and the Bamboo screen was inspected from the rear of the respondents' property. Though I didn't count, the planting is very dense and is likely to comprise the 33 plants specified in planting plan. The screen is continuous along at least 15m of the boundary, which is initially fairly level for about seven metres from the southern corner and then rises up a slope in a north-north easterly direction. Up this slope, the Bamboo is planted in a series of terraced garden beds. Along the lower, level southern section, the screen is approximately 12 metres tall. At the north eastern end, where the top has been pruned, it is a few metres lower.
2. The outlook from the front of the Thomas' property was also inspected, to consider the views to the north and north-west. From the master bedroom balcony, the views were local and dominated by trees. No water views were apparent.
3. The inspection of Ms Peter's property began on the ground floor in the master bedroom, where the light exposure was examined to two windows facing north (W7 and W8) and one window (W9) facing west.
4. On the middle floor, in a bedroom directly above the master, again the light exposure was examined to two windows facing north (W5 and W6) and one window (W4) facing west.
5. On the top floor, the dining room and lounge were located at the northern end of the house, with the dining room on the north-western side. The light exposure from the north facing dining room window (W1) was considered, and this window was also nominated as one of the points (V3) from which the view is reduced or eliminated. The window facing west from the dining room (W2, V2) is also nominated with respect to both light and view impingement, as is the window (W3, V1) which faces the north north-west from an alcove that protrudes from, and forms part of the kitchen, which adjoins the dining room to the south. The car parking area to the north-west of the property is also nominated as an area that now has restricted views (V4).
6. It is from the dining room and kitchen windows that the impact of the Bamboo screen is most relevant in terms of the Act.
7. The bamboo screen rises approximately 7.5 metres above the floor level of the top storey of Ms Peters' dwelling, except for a section about 2.5 metres long at the north-eastern end, furthest from the house, where it has been pruned to a height a few metres lower. Throughout the screen, many taller culms were also currently unfurling. The screen commences close to the boundary, in the southern corner of the Thomas' property, which is about 4.5 metres to the north west of the north-western corner of Ms Peter's house. It continues for more than 15 metres tight against the boundary at about 30 degrees to the north east of north. It forms a dense barrier. The bamboo screen was planted and has grown since Ms Peters purchased her property.

Submissions

1. Ms Peters' submission is firstly that the bamboo screen blocks light to 9 windows, particularly in the winter. She is relying on the evidence provided in her application, and that which is apparent from the site inspection. She did not provide shadow diagrams. She also submits that her view from V1-V4 is totally obstructed.
2. Mr and Mrs Thomas are represented by Ms McLoon and Dr Smith. Dr Smith acknowledges that the respondents accept that the subject bamboo hedge: 1. involves 2 or more trees 2. was planted so as to form a hedge; and 3. at the time of the hearing, has risen to a height of a least 2.5metres and thus satisfies the requirements of section 14A(1) of the Act.
3. Dr Smith submits that the tests in s 14E(2)(a)(i), 'that The Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land', are not met, on the basis that the obstruction is not severe.
4. Both Dr Smith's submission on behalf of the Thomas' and Mr Thomas' affidavit, contend that the vegetation cover that existed prior to the Bamboo was dense and extensive with an impact not significantly different to that of the Bamboo screen, in that the Liquidambar trees particularly, "together formed a large canopy providing privacy to our rear garden from the adjoining property" (affidavit pp2.4).
5. While it is clear from the initial Landscape plan (Appendix 1C), that the canopies of the Liquidambar trees would have cast considerable shade over the applicant's property in the afternoon, they were located about 9m from the boundary between the properties. They are deciduous trees and thus would not have significantly obstructed light in winter.
6. As to the Jacaranda tree formerly near the respondent's rear boundary, while this species does retain foliage cover through the winter, this tree at around 9m x 3m would have provided only a minor to moderate shadowing impact. The Kentia Palm also would have offered only minor over shadowing.
7. No other trees were noted on the 2012 Landscape plan.
8. The impact provided by the current evergreen bamboo hedge therefore appears to be much greater than that of the previous vegetation and the winter solstice is used in determining severity. In Ball v Bahramali and Anor [2010] NSWLEC 1334 [32] and [60], the Court has considered there to be a severe impact, where less than 3 hours of sunlight to living room windows for at least 50% of their area on 22 June between 9am and 3pm, is provided. In establishing this criteria, the Court has considered the usual minimum development standards for sunlight (solar amenity) required by most councils for new developments.
9. Though, as Dr Smith contends, the onus is on the applicant to prove the severity of the obstruction of sunlight to a window - Clancy v Bell [2011] NSWLEC 1017, and though shadow diagrams are recommended, the Court has not mandated their production.
10. Even in their absence, I am satisfied that reasonably accurate assumptions can be made on the basis of the 33 degree inclination of the sun at midday in mid-winter that results in a shadow of approximately 1.5 times the height of any structure that is creating the shadow - Lynch v Stapleton [2018] NSWLEC 1008. I note that the existing bamboo hedge which rises approximately 7.5 metres above the floor level of the top storey of Ms Peters' dwelling would thus cast a dense shadow for around 11.25 metres.
11. I am therefore satisfied that the aforementioned test of severe is met, in that window W1 from the dining room would receive less than 3 hours of sunlight for at least 50% of their area on 22 June between 9am and 3pm. This window may both be considered to be in a living room. I am also satisfied that the direction of north has been established quite accurately with respect to the applicant's building alignment.
12. While bedrooms (W4-9) are not considered as important as living rooms with respect to sunlight, this is now not relevant, as the Act requires that the severe obstruction only be proven for one window. Similarly, therefore, consideration of views (1-4) is no longer necessary.
13. Having found that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicants land, the Court must then consider s 14E(2)(b): whether 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.
14. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required. (a) The trees are wholly located on the respondent's property. (b) The trees were planted some 4 years after Ms Peters moved into her dwelling, which has not been materially altered since then. (c) The trees have grown to their current height of about 12m in that time. (e) The Bamboo hedge planting was included in an approved Landscaping plan, but they were not planted as a condition of development consent for the respondents' property. (f) Given the species, the trees are likely to make some, though minimal, contribution to biodiversity. (g) The trees contribute to the scenic value of the land on which they are growing. (h) The trees are not of such a size or in a prominent location to make a significant contribution to public amenity. (k) The trees are of a species and size that can be pruned without unduly affecting their health or function. This includes regular maintenance pruning. Based on the thicker growth exhibited in the section that has already been pruned, it is likely that pruning will enhance their function for the respondents. (l) They contribute to the privacy of the dwellings on the respondents' land. However, it is noted that even with a moderate reduction in height of around 2.5 metres, from a standing position from any of the normal viewing points within the applicant's property, it is not readily possible to see into the private open space of the respondents' property. This may also enhance the already structured form of the respondent's garden. (m) Part of the overshadowing of the applicant's relevant window is contributed to by the Thomas' Norfolk Island Pine, and to a much lesser extent by some Strelitzias and a Bangalow Palm on Ms Peters' property. The Norfolk Island Pine, however, would more likely contribute to shading from mid to late afternoon, and In the absence of the Bamboo, would provide only filtered rather than dense shade, due to its growth habit. The Strelitzias and Palm emerge from quite low down in Ms Peters' garden, and would mainly overshadow the bottom two storeys. (n) While the applicant's gardener previously pruned the top of about 2.5 metres of the hedge, this was apparently done without permission and the work was stopped by the respondent. (p) The trees are evergreen. (r) The obstructed window is in dining room, which may be considered to be a main living areas of the applicants' dwelling.

Conclusions

1. I am satisfied, first, that s 14E (1) has been met in that the applicant has made a reasonable attempt to reach agreement with the owner of the land on which the trees are situated, given that the court accepts that opportunities exist until the end of the hearing for negotiations between parties to occur -Ball v Bahramali and Anor [2010] NSWLEC 1334 [39] to [45]
2. I am also satisfied that the trees form a hedge for the purpose of the Act, that the test of severe is met, in that window W1 from the dining room, which can be considered as a living room, would receive less than 3 hours of sunlight for at least 50% of its area on 22 June between 9am and 3pm. Appropriate pruning of the hedge should not materially reduce the privacy it affords the Thomas', and the hedge's form may be enhanced by these works.

Orders

1. With the tests for the jurisdiction thus satisfied, the parties took a conciliatory approach and the following orders were agreed to: 1. The respondents are to maintain the Bamboo hedge along their rear boundary, for the life of the hedge, at a height of approximately 2.6m, measured from above the fence, immediately adjacent to the shed in the applicant's car port area as indicated in Annexure A. 2. The hedge is to be trimmed within three weeks of the 1st of April and within three weeks of the 1st of October each year. The initial pruning is to be completed by the 18th May 2018. 3. The Bamboo hedge is to be trimmed at an even height horizontally in line with the 2.6m measured from above the fence immediately adjacent to the shed in the applicant's car port area and not to be stepped down in line with the boundary fence. 4. The applicant is to provide the respondents with access to the applicant's property for the purposes of the respondents or their representatives undertaking the maintenance of the height of the hedge required by Orders 1 and 2. When organising access, the applicant is to be given reasonable notice and the maintenance work is to be carried during reasonable hours of the day. 5. The applicant and the respondents are to equally share the cost of the maintenance. 6. The cost incurred by the respondents in maintaining the hedge in accordance of Orders 1 and 2 is to be reimbursed by the applicant within 21 days of the completion of the maintenance work. If there is a dispute in relation to the cost of the maintenance, the applicant is to obtain 3 quotes for the required maintenance from a suitably qualified and experienced AQF 3 Arborist or Landscape gardener, and the lesser of those 3 quotes is to apply to determining the cost to be reimbursed. 7. The work is to be completed in accordance with the Workcover NSW Code of practice for the amenity tree industry (1996).

Acting Commissioner of the Court Annexure A (1.23 MB, pdf)

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