Beswick v Sandig

The onsite hearing

1. The hearing initially occurred onsite, allowing the Court to inspect the trees, both properties, and issues relevant to these proceedings. The applicants were self- represented. The respondent was represented by Mr Lane, Solicitor, of Lane Legal, and Mr Sandig's son attended. The Court inspected and considered the bamboo's impact from the applicants' backyard, the ground floor deck, and first floor rooms. As To allow Mr Sandig was to participate from overseas, subsequent submissions were made in Court, both in person and via AVL.
2. Mr and Mrs Beswick proposed the following (disidentified and summarised) order: 1. Trim and maintain the hedge of bamboo along the parties' common boundary to a height of 3.5 m from ground level, or remove it entirely, due to the bamboo blocking the view, and overhanging foliage dropping debris and shading the rear back yard near the common boundary.

Submissions

1. Notwithstanding that the respondent's submissions were to be lodged by 9 July 2024 in accordance with Orders made by Senior Deputy Registrar Holm at the directions hearing of 25 June 2024, Mr Sandig submitted a Supplementary Affidavit dated 21 July 2024 (Affidavit 2). Given the imperative under s 56 of the Civil Procedure Act 2005, however, to provide cheap, quick, and just resolution of civil disputes, however, , I accepted Affidavit 2 as it primarily supplemented the respondent's affidavit of 8 July 2024 (Affidavit 1) and included photographs that contributed to the body of reliable evidence. Further, the applicants did not challenge the acceptance of Affidavit 2.
2. The following cases, tendered by the respondent and relied on for oral submissions, shall be addressed where they are relevant to the jurisdiction:

• Byrne v Davies [2024] NSWLEC 1295 (Byrne)
• Steber v Job [2019] NSWLEC 1308 (Steber)
• Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity)
• Tooth v McCombie [2011] NSWLEC 1004 (Tooth)

1. Under other relevant matters, at question 29 of the Tree Dispute Claim Details (Exhibit B), Mr and Mrs Beswick noted a decision of the Court in Qian v Sandig [2024] NSWLEC 1137 (Qian) on 22 March 2024, in favour of their side neighbour. Although the application in Qian claimed damage under Pt 2 and severe obstruction of both sunlight and views under Pt 2A, orders for removal of all bamboo within 4 m of the neighbour's' dwelling were made as a result of damage by the bamboo, while the application under Pt 2A of the Trees Act was refused.

Jurisdictional requirements

1. The Court's jurisdiction under Pt 2A of the Trees Act is limited and does not assume one should have a right to sunlight or views. The Court must consider a number of jurisdictional tests before any orders can be contemplated. Even when the jurisdictional tests are satisfied, before making any orders the Court is required to balance the benefits of the trees against the interests of the applicant. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].
2. Though somewhat unconventional, for the sake of clarity I shall initially address the administrative requirements under Pt 2A, thus deferring the first test at s 14A(1): whether the trees are a hedge for the purpose of the Trees Act.
3. 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: 1. sunlight to a window of a dwelling situated on the land, or 2. 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.
4. The applicants own their property and claim that views from their dwelling are severely obstructed by the respondent's hedge. The trees are situated on adjoining land, thus s 14B of the Trees Act is satisfied.
5. The applicants have satisfied s 14C of the Trees Act, which sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located, and to Ku-ring-gai Shire Council (Council).
6. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
7. Section 14E(1)(a) requires that the applicant makes a reasonable effort to reach agreement with the owners of the land on which the trees are situated. In Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280 (Robson), Preston CJ provides guidance about the 'reasonable effort' required to satisfy the Trees Act. At [195]; his Honour said: "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."
8. The requirement under 14E(1)(a) of Pt 2A is the same as that under s 10(1)(a) of Pt 2 of the Trees Act. In Robson, at [191]-[194]; his Honour provides the following framework for consideration of this requirement: "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."
9. Therefore, the requirement at s 14E(1)(a) to make "a reasonable effort to reach agreement" does not prescribe the conduct of applicants or how applicants negotiate, nor does it preclude either party from adopting an intractable position. Though the parties dispute the content of the conversation, the Mr Beswick's allegeded that hely raised the view obstruction issue when talking 'over the back fence' in early 2023 (Robson; at [191]). The applicants provided evidence of three emails sent to Mr Sandig between November 2023 and 17 January 2024, which requested bamboo pruning to remedy obstructed views, mess from debris, and restricted light (Robson; at [192]). Mr Sandig replied to the first email, but advisinged he would remove individual stems as necessary but not reduce the bamboo's height. In their third email, the Beswick's advisednoted, "this has not addressed our concerns in any meaningful way", but they received no reply to their second or third emails. Therefore, regardless of the impasse, I am satisfied that Mr and Mrs Beswick made a reasonable effort to reach agreement with the owner of the land on which the trees are situated" such that s 14E(1)(a) of the Trees Act is engaged.

Section 14A(1) and s 14E(2).

1. Now I return to s 14A(1), and s 14E(2), the key jurisdictional tests largely based on the characteristics of the hedge and the site. Mr Lane readily acknowledged the intent of pruning the bamboo below 2.5 m was to circumvent the jurisdiction. He submitted the Court should follow the long-established rationale of Tooth v McCombie [2011] NSWLEC 1004 (Tooth), whereby the assessment of the hedge, and resultant obstruction, is based exclusively on the condition of the hedge at the hearing, s 14A(1)(b) of the Trees Act is thus not satisfied and the application must be refused.
2. In response to my suggestion that the circumstances here were similar to those of Steber v Job [2019] NSWLEC 1308 (Steber), Mr Lane argued that, legally, Steber should not be used as it is not common law's role to alter words of an Act, nor should two concurrent rationales be available for determining s 14A(1)(b) or s 14E(2)(a). He noted that changes in Pt 2 of the Trees Act, such as the insertion of s 4(4) in 2010, had been made by amendments to the legislation, not as the result of a judgment. Separately, Mr Lane contended the pruned bamboo would be slow to regrow.
3. Notwithstanding Mr Lane's argument, my assessment of the trees and the severity of obstruction shall follow the rationale from Steber as the key circumstances here mirror the discrete circumstances of Steber, and other cases where both Galwey AC and I have applied Steber.
4. It is serendipitous that Preston CJ recently delivered an appeal judgment that addressed the law underpinning 'Steber' and resolved questions about its application, in Unsworth v Hennessy [2024] NSWLEC 82 (Unsworth).
5. Given Unsworth was the first appeal testing the lawfulness of the rationale established in Steber, and the application of Tooth is often at issue, it is apt to not only finalise the case at hand, but to also provide context around Steber and his Honour's judgment in Unsworth. Consequently, extensive caselaw is included.

Section 14A - do the trees form a hedge?

1. Section 14A(1) tests whether the trees are a hedge for the purpose of the Trees Act : (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).
2. The bamboo was planted in 2015 in a linear configuration, with clumps about 1.5 m apart. By mid-2024, the bamboo had melded into a dense screen and reached 8-10 m in height.
3. Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act.
4. Five days before the hearing, the bamboo was pruned to a height less than 2.5 m tall to circumvent the requirement at s 14A(1)(b) of the Trees Act, that groups of two or more trees rise to a height of at least 2.5 metres.

Steber

1. In Steber, at [10]-[12], Acting Commissioner Galwey began formulating an alternative rationale to Tooth and [11] is particularly relevant: "10 Photographs included in the Stebers' application show the situation at the time, or shortly before, they applied to the Court (the date stamp is clearly incorrect as the Stebers' dwelling was not present in 2011). These photos unequivocally show the bamboo to be more than 2.5 metres tall and to form a hedge. This is not disputed by Ms Job, who also stated that she planted the trees (more than one) to make a hedge. 11 Although the bamboo plants were pruned shortly before the hearing, leaving them less than 2.5 metres tall, the Stebers have shown that they are indeed trees that rise to a height greater than 2.5 metres. Had the trees never reached that height, for instance by Ms Job continually maintaining them at a lower height from the time she planted them, then the Stebers would be unable to show that these particular trees rise to a height of at least 2.5 metres. I appreciate that earlier decisions of this Court, including my own, have dismissed applications where trees have been pruned prior to the hearing so that they are less than 2.5 metres tall. However, the Trees Act does not restrict the present tense of 'rise' to a single moment in time. If the trees had not yet reached 2.5 metres but might do so in the future, they do not presently rise to that height. This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [53]-[59]. If they have reached 2.5 metres in height, they are trees that rise to 2.5 metres, even if they might not do so on the day of the hearing. This interpretation of s 14A is preferred as it promotes the objectives of the Trees Act, a matter discussed at greater length below from [34]. 12 According to s 14A, then, Part 2A of the Trees Act applies to Ms Job's bamboo hedge."
2. Acting Commissioner Galwey explained the origins and basis for the judgment in Tooth, and the reasons for his departure from Tooth in Steber; at [34]-[37]: "[34] The jurisdictional test at s 14E(2)(a) requires the Court to be satisfied that the trees concerned are severely obstructing sunlight or a view. This Court has, in many cases, construed the grammatical use of the present progressive 'are obstructing' (leaving out the adverb 'severely' for the minute) as a test to be applied on the day of the hearing. In Tooth v McCombie [2011] NSWLEC 1004, the respondents pruned their trees after the application was made and before the hearing. Commissioner Fakes found at [14] that the use of the present tense implies 'at the time of the hearing.' "The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing." [35] I concur that the test does not refer to a future, as yet unrealised, view obstruction, but I am no longer convinced that 'are obstructing' implies 'at the time of the hearing', even though I have applied this interpretation myself until now. Given the potential consequences of such a change of mind, it is worth explaining. After all, the annotated version of the Trees Act, available for potential applicants and respondents in tree matters, includes reference to this well-used interpretation of s 14E(2)(a). [36] When assessing sunlight obstruction, the Court does not limit itself to the situation as found 'at the time of the hearing'. Trees might obstruct sunlight from the north only, during winter, but the hearing might take place during summer. Afternoon obstruction of sunlight might not be observed at a morning hearing. Nevertheless, the Court has made orders in these situations. The Court considers that, given the existing situation, a severe obstruction is something that has occurred and will most probably occur again. [37] I now read the words 'are severely obstructing' to be a state that, once reached, might continue to apply or recur. If a tired worker tells her colleague that her neighbour's dogs are disturbing her sleep, she is not saying it is happening at that moment; rather, she is describing an ongoing state of affairs that affects her life at present. It has happened, recently, and is likely to happen again, soon. Dictionaries describe this use of the present progressive tense as 'continuous'."
3. At [38] of Steber, Galwey AC explained that "[i]n the case of more than one possible interpretation of an Act's provisions, the Interpretation Act 1987 (NSW) ('the Interpretation Act'), at s 33, favours an interpretation that promotes the Act's underlying purpose". At [39], the Commissioner noted that the "objective of the Trees Act", quoted in both the "Attorney General's 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the 2009 Review') and the 2013 Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (High hedge provisions) ('the 2013 Review'), is "to provide 'a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'". Furthermore, "N"[n]either review noted any requirement for a jurisdictional test to be satisfied on the day of the hearing" (Steber; at [40])".
4. At [41]-[45] of Steber, Acting Commissioner Galwey concluded his argument and applied his rationale to the case circumstances. I have emphasised text at [43]-[44] in italics: "[41] Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a). [42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order. [43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case. [44] The Stebers argued that Ms Job has demonstrated through her actions, or lack of action, that she cannot, or is not willing to, prevent her bamboo growing and obstructing their view. I accept this to be the case. Ms Job initially responded to the Stebers' request to restore their view with promises to prune the bamboo. Only minor pruning was done. Ms Job stated that she was unable to undertake the pruning herself, and she had great difficulty finding someone to do it. She submitted that contractors were put off by the heat during summer. This does not explain the two years it appears to have taken for adequate pruning to finally be done. [45] Having considered photographs, observations, the history of the matter and the submissions heard, I find Ms Job's hedge has caused a severe obstruction of the Stebers' view and that this is likely to be an ongoing state. I am satisfied that the trees, in this case bamboo, are severely obstructing the view from the Stebers' dwelling.

Unsworth

1. In Hennessy v Unsworth [2023] NSWLEC 1773 (Hennessy), Acting Commissioner Galwey determined a view obstruction in Mosman to be severe and ordered pruning of a Lilly-Ppilly hedge in Mosman. At [15]-[16], he said: "15… The respondent stated that it is her intention to maintain the trees at a height 200 mm above the trees' height observed at the hearing. Based on this, rather than limit my assessment of the view obstruction to the day of the hearing, I consider what is most likely the ongoing state of affairs here: a hedge that is approximately 200 mm taller than the trees' height on the day of the hearing. This is consistent with the approach set out in Steber…". 16 The applicant's photographs show that the hedge reduced the view from the applicant's relevant west-facing windows so that only the sky remained visible above the trees. Other photographs, and observations made onsite, demonstrated the view that was available earlier when the hedge (both the existing hedge and the one it replaced) was at the height of the fence.".
2. The Unsworth appeal is limited to questions of law. At [9]-[10], his Honour grouped the six grounds pursued by Mrs Unsworth into three alleged errors on questions of law, the first of which is relevant to this case: 1. "misinterpreting and misapplying s 14E(2)(a)(ii) of the Trees Act by assessing the degree of obstruction of the view from Mrs Hennessy's house not by the degree of obstruction of the trees of the hedge as they existed at the date of the hearing but instead by the degree of obstruction of the trees as they would be under the most likely state of affairs of being 200mm taller than the trees' height on the day of the hearing (the erroneous date of assessment issue)." Mrs Unsworth's key submissions are at [12]-[17] of Unsworth: "12 Mrs Unsworth argued that by pruning the trees of the hedge to reduce their height, at various times after the application was filed with the Court including two days before the hearing, she changed the factual basis upon which the Court was obliged to assess the degree of obstruction under s 14E(2)(a) of the Trees Act. The Court could not consider the degree of obstruction that occurred as a consequence of the trees being at the height the trees were at the time Mrs Hennessy applied to the Court for an order to remedy, restrain or prevent the obstruction. And the Court could not consider the degree of obstruction that will occur as a consequence of the trees being allowed to grow back to that height, as Mrs Unsworth said she intended to do. Instead, Mrs Unsworth argued the Court was obliged to assess the degree of obstruction as a consequence of the trees at the height she opportunistically had pruned them to at the moment in time the hearing happened to take place. 13 Mrs Unsworth argued that assessment of the degree of obstruction at this time is demanded by the use of the present tense of the verb to obstruct in s 14E(2)(a) of the Trees Act. That paragraph provides: "(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". 14 Mrs Unsworth submitted that the use of the present tense "are obstructing" directs attention to a presently existing state of affairs. This state of affairs is the condition of the trees, including their height, and the obstruction of sunlight or a view that the trees cause, on the day of the hearing. Mrs Unsworth cited a Commissioner's decision, Tooth v McCombie [2011] NSWLEC 1004 at [14], as supporting this construction of s 14E(2)(a)(ii). 15 Mrs Unsworth submitted the Commissioner's construction of s 14E(2)(a)(ii) in [15], following his approach in Steber v Job [2019] NSWLEC 1308 at [35]-[41], is inconsistent with the use of the present tense "are obstructing". Mrs Unsworth submitted: "It does considerable violence to the text of the Act to conclude that trees which are not severely obstructing a view from a dwelling, but would severely obstruct a view if they reached a different state in the future, can be described as trees that 'are severely obstructing' a view": Appellant's Outline of Submissions, [14]. 16 Mrs Unsworth submitted that the Commissioner's construction would require: "the creation of a series of alternative concepts to make the Act operate in a different context. It requires some notion of what is likely to be the future condition of the trees, which in turn requires some notion of how that should be assessed and who bears the onus": Appellant's Outline of Submissions, [17]. 17 The Commissioner's test requires a finding of "what is most likely the ongoing state of affairs" and assessing the degree of obstruction of a view as a consequence of that ongoing state of affairs. Mrs Unsworth submitted there is no legislative support for this test: Appellant's Outline of Submissions, [17].
3. Mrs Hennessy's primary submissions are at [21]-[22] of Unsworth: 21 Mrs Hennessy contested Mrs Unsworth's construction of s 14E(2)(a)(ii) of the Trees Act. The drafter selected the present progressive tense of the verb to obstruct, "are obstructing", instead of the present simple tense, "obstruct". The present progressive tense is used for an ongoing action or condition in the present and also to describe an action or condition that is going to happen in the future. The present simple tense is used for an action or a condition happening right now or a habitual action or occurrence. The grammatical choice of the drafter supports the Commissioner's construction of s 14E(2)(a)(ii) as referring to "what is most likely the ongoing state of affairs." 22 Mrs Hennessy submitted that this construction of "are severely obstructing" in s 14E(2)(a)(ii) does not change the statutory test. The question of whether trees "are severely obstructing" a view is answered having regard to the condition of the trees concerned over a longer timescale than the single day of the hearing. To restrict the assessment of the degree of obstruction of a view to only the day of the hearing would be to "import unnecessary words into the statute that are inconsistent with its purpose".
4. His Honour rejected the Unsworth appeal and provided seven reasoningreasons; the first four of which are, at [28]-[459]: "28 I reject Mrs Unsworth's grounds of appeal that the Commissioner erred in construing s 14E(2)(a)(ii) of the Trees Act by not limiting his assessment of the degree of obstruction of a view from Mrs Hennessy's house to the state of the trees comprising the hedge as they existed at the date of the hearing but also had regard to "what is most likely the ongoing state of affairs." Mrs Unsworth's grounds of appeal are based on a misconstruction of s 14E(2)(a) of the Trees Act. On a proper construction, s 14E(2)(a) permits the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees to be over a longer timescale. There are seven reasons. 29 First, the drafter used the present continuous or progressive tense of the verb to obstruct, "are obstructing", in s 14E(2)(a) instead of the present simple tense of "obstruct." The present continuous tense can be used to describe an action or state that is ongoing at the present time. In the case of s 14E(2)(a), the present continuous tense of "are obstructing" is used to refer to the ongoing action or state of the trees concerned obstructing sunlight to a window of a dwelling situated on the applicant's land (subparagraph (i)) or obstructing a view from a dwelling situated on the applicant's land (subparagraph (ii)). This is a present state of affairs - the trees that form the hedge are in a state, including their height, width and canopy density, that causes an obstruction of sunlight or a view. 30 Nevertheless, even though the present continuous tense of a verb is a present tense, it can also be used to describe an action or a state that is going to happen in the future. In the context of s 14E(2)(a), the present continuous tense of "are obstructing" is also used in this sense to refer to an obstruction that is going to happen in the future as a consequence of the trees concerned, either an obstruction of sunlight to a window of a dwelling (subparagraph (i)) or an obstruction of a view from a dwelling (subparagraph (ii)), if an order is not made to remedy, restrain or prevent the obstruction. This refers to a state of affairs that will occur in the future by reason of the present state of the trees. 31 Consider a hedge of deciduous trees of a height, width and canopy size as to obstruct sunlight to a window of a dwelling on adjoining land or a view from a dwelling on adjoining land. Although in mid-winter, when the trees are leafless, the trees might not obstruct sunlight or a view, by mid-summer, when the trees have a dense canopy of leaves, the trees will obstruct sunlight or a view. The obstruction in mid-summer is a consequence of the spring and summer phenology of the trees concerned. The trees "are obstructing" sunlight or a view in mid-summer, because the obstruction happens at that time, but they also "are obstructing" sunlight or a view in mid-winter, because the obstruction of sunlight or a view is going to happen through the course of every year by reason of phenological changes in the trees. 32 The drafter's choice to use the present continuous tense of the verb to obstruct in s 14E(2)(a) should be seen as purposive, the purpose being to address not only an obstruction that happens right now but also an obstruction that is going to happen in the future as a consequence of the trees concerned. This dual purpose could not be achieved if the drafter had used the present simple tense of the verb to obstruct. The present simple tense is used for an action or a state that happens right now. If the drafter had used the present simple tense of the verb to obstruct, s 14E(2)(a) would have been limited to obstructions of sunlight to a window of a dwelling or a view from a dwelling that happen right now, but not such obstructions that are going to happen in the future as a consequence of the trees concerned. 33 Secondly, the subject of the action of obstructing in s 14E(2)(a) is "the trees concerned". Assessment of the degree of obstruction as a consequence of the trees concerned under s 14E(2)(a) requires consideration of the state of the trees at different times. The phrase "the trees concerned" in s 14E(2)(a) refers to the trees in respect of which the Court may "make an order under this Part" (the words in the chapeau of s 14E(2)). The provision in Part 2A of the Trees Act under which an order may be made is s 14D(1). The Court may make an order under 14D(1) to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling on the applicant's land "if the obstruction occurs as a consequence of trees that are the subject of the application concerned." Hence, the phrase in s 14E(2)(a) "the trees concerned" refers to the trees that may be the subject of an order under s 14D(2), which in turn refers to the "trees that are the subject of the application concerned." 34 This interlinkage between s 14E(2) and s 14D(1) requires the Court to consider the state of the trees concerned at two times: first, at the time of making the application to the Court under s 14B and, second, at the time of the Court making an order under s 14D(1). 35 The phrase in s 14D(1) "trees that are the subject of the application concerned" refers to the trees in respect of which an applicant applies to the Court under s 14B for an order to remedy, restrain or prevent a severe obstruction to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the applicant's land. Section 14B uses a conditional to describe when an application in respect of the trees may be made: "if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land." This conditional phrase in s 14B has two parts. 36 The first part, "trees to which this Part applies", are the trees referred to in s 14A(1) of the Trees Act. That subsection provides: "(1) This Part applies only to groups of 2 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)." 37 This describes a state of affairs that must have happened in order for the trees to be trees to which Part 2A of the Trees Act applies: the trees are in a group of two or more trees that are planted to form a hedge and rise to a height of at least 2.5m above existing ground level. 38 In the second part, the obstruction of sunlight to a window of a dwelling situated on the applicant's land or a view from a dwelling situated on the applicant's land must occur "as a consequence of" those trees to which Part 2A applies "being situated on adjoining land". The obstruction is not merely a consequence of the trees concerned, it is a consequence of the trees "being situated on adjoining land." The words "being situated" is the passive voice of the present continuous tense of the verb to situate. As I have earlier noted, the present continuous tense is used to describe an action or a state that is happening at the present moment as well as an action or a state that is going to happen in the future. In s 14B of the Trees Act, the state is the trees being situated on the adjoining land. This state causes the obstruction of sunlight or a view. The state of the trees being situated on adjoining land is continuous - it is happening now and will continue to happen in the future. This continuous state of the trees is the cause of the obstruction of sunlight or a view - the obstruction is happening now and will continue to happen in the future unless an order is made to remove the trees. 39 This interlinkage between s 14D(1) and s 14B requires the Court to consider the state of the trees not just at the times of the making of the application under s 14B and the making of an order under s 14D(1), but also the ongoing state of affairs of both the trees as ongoing subjects of the ongoing action of obstruction of sunlight or a view as a consequence of the trees concerned . 40 In summary, this tracing back from "the trees concerned" in s 14E(2)(a) to "trees that are the subject of the application concerned" in s 14D(1), to "trees to which this Part applies" in s 14B, to the definition of the trees to which the Part applies in s 14A(1), and then to "trees…being situated on adjoining land" in s 14B, reveals a legislative intention to refer to the trees on adjoining land as ongoing subjects of the ongoing action of obstruction of sunlight to windows of, or a view from, a dwelling situated on the applicant's land. The different statutory provisions might on their face refer to the obstruction occurring at different times - s 14B at the time of making an application and s 14D and s 14E at the time of making an order under s 14D - but the use of the present continuous tense of "are obstructing" in s 14E(2) and of "being situated" in s 14B, and the interlinkages between the statutory provisions, signify that the obstruction as a consequence of the trees is ongoing, happening now and going to happen in the future. 41 Thirdly, assessment under s 14E(2)(a) of the degree of obstruction that occurs as a consequence of "the trees concerned" directs attention to the particular trees that are the subject of the application concerned. Trees are heterogenous in their genotype, phenotype, physiology, physiognomy and phenology, amongst other biological features. The obstruction that must be assessed is the obstruction that occurs as a consequence of the particular trees that are the subject of the application. 42 This assessment of the trees concerned must also be undertaken with the recognition that the trees are dynamic living organisms that grow and change over time, both in their overall life cycle from germination to death and in their seasonal life cycle from season to season. Any obstruction of sunlight or a view that occurs as a consequence of the trees will change in degree through the life cycle and seasonal cycle of the trees. Consider again the example I have given of a hedge of deciduous trees. The trees will leaf out in spring, form a dense canopy in summer, release their leaves to fall to the ground in autumn, and be leafless in winter. The obstruction of sunlight or a view as a consequence of deciduous trees will be greatest when the trees are in leaf with a dense canopy and least when the trees are leafless. 43 The assessment of the degree of obstruction of sunlight or a view required by s 14E(2)(a) needs to have regard to this seasonal change in the leaf canopies of deciduous trees. The assessment is not restricted to the condition of the trees at the moment of the hearing of the application under s 14B of the Trees Act. That would produce inconsistent results. A court hearing an application in mid-winter, if the assessment is restricted to the condition of the trees at the date of the hearing, might find that there is not a severe obstruction, as the leafless trees allow sunlight and views through the trees, but a court hearing the same application in mid-summer might find that there is a severe obstruction, as the dense leaf canopies of the trees prevent sunlight or views through the trees. The varying degree of obstruction of sunlight and views that occurs from season to season can properly be said to be as a consequence of "the trees concerned" (the phrase in s 14E(2)(a)), the deciduous trees, "being situated on adjoining land" (the phrase in s 14B). And that varying degree of obstruction can be taken into account when assessing under s 14E(2)(a) whether the trees concerned "are severely obstructing" sunlight or a view. 44 This example illustrates that the words "are severely obstructing" in s 14E(2)(a) need to be construed in the context of the particular trees that are the subject of the application concerned and the fact that the trees concerned are dynamic living organisms which may obstruct sunlight and views differently at different times of the year. 45 Fourthly, s 14F sets out matters the Court is to consider "before determining an application under this Part". Determining an application includes making an order under s 14D(1) to remedy, restrain or prevent a severe obstruction that occurs as a consequence of trees that are the subject of the application concerned. The matters in s 14F include considerations whose assessment cannot be undertaken at only one point in time, whether that be the date an order is made or the date of the hearing of the application, but rather which require assessment over a longer timescale. Paragraphs (o) and (p) are examples. 46 The consideration in paragraph (o) is: "the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost". 47 The consideration in paragraph (p) is: "whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves". 48 Paragraph (o) is relevant to the Court's assessment under s 14E(2)(a)(i) of whether the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. The time of the year during which sunlight is lost, and the amount and number of hours per day of any sunlight lost, is not to be assessed having regard to the time of year that the hearing happens to take place, but over the whole year. The degree of obstruction of sunlight will wax and wane throughout the seasons of the year. 49 Paragraph (p) is relevant to the Court's assessment under s 14E(2)(a)(i) and (ii) of whether the trees concerned are severely obstructing sunlight or a view. The consideration of whether the trees concerned lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves informs the assessment of the degree of obstruction that occurs as a consequence of the trees. That assessment is made having regard to the state of the trees throughout all of the seasons of the year, not just the state of the trees at the time the hearing happens to take place. This matter in paragraph (p) is an express recognition of the point I have made earlier that the assessment of the degree of obstruction must have regard to the particular trees that are the subject of the application, including their phenology. 50 Fifthly, the precondition in s 14E(2), that the Court form the required opinions of satisfaction regarding the matters in paragraphs (a) and (b), is to the Court making an order under s 14D(1). The orders the Court may make under s 14D(1) are threefold: to remedy, restrain or prevent the severe obstruction. An applicant may make an application under s 14B seeking any one or more of these three orders. The inclusion in s 14B and s 14D(1) of an order to prevent a severe obstruction in addition to orders to remedy or restrain a severe obstruction is important. To prevent something is to keep something from happening. In the context of s 14B and s 14D(1), it is to prevent a severe obstruction of sunlight or a view from occurring as a consequence of the trees concerned. In contrast, in order to be able to remedy or restrain a severe obstruction, the obstruction must have already occurred and be occurring. But an order to remedy or restrain a severe obstruction will be ineffective for an obstruction that is yet to occur. This is the purpose of providing for an order to prevent. The applicant can seek under s 14B and the Court can make under s 14D(1) an order to prevent a severe obstruction occurring as a consequence of the trees concerned. 51 The words "are severely obstructing" in s 14E(2)(a) need to be construed in this context that an applicant can seek and the Court can make an order to prevent a severe obstruction of sunlight or a view occurring as a consequence of the trees concerned. The Court's assessment of whether the trees concerned "are severely obstructing" can have regard to not only any obstruction that has occurred or is occurring but also any obstruction that will occur. The assessment of the severity of the obstruction under s 14E(2)(a) will vary according to when the obstruction occurs: backward-looking for obstructions that have occurred, present-looking for obstructions that are occurring and forward-looking for obstructions that are yet to occur. So too, the orders the Court may make will vary depending on when the severe obstruction occurs: orders to remedy or restrain a obstruction that has occurred and is occurring, and an order to prevent a obstruction that is yet to occur. 52 Sixthly, the assessment under s 14E(2)(a) of the degree of obstruction as a consequence of the trees concerned needs to be distinguished from the time at which that assessment is required to be undertaken. Section 14E(2) fixes the time of assessment by reference to when the Court makes an order under Part 2A: "The Court must not make an order under this Part unless it is satisfied…" of the matters in paragraphs (a) and (b). The formation of the opinion of satisfaction about the matters in paragraphs (a) and (b) of s 14E(2) is a precondition to the Court being able to make an order under s 14D(1) of the Trees Act. The time at which the Court makes an order under s 14D(1) may or may not coincide with the date of the hearing. It will be when the Court delivers its judgment ex tempore; it will not be when the Court reserves its judgment. The latter was the situation in this case: the case was heard on 20 July 2023 but judgment was not delivered until 20 December 2023. 53 Mrs Unsworth submitted that, although legally the Court must form the required opinion of satisfaction at the time of making an order under s 14D(1), in practice the Court will form that opinion on the basis of the evidence adduced at the hearing. That evidence will describe the state of the trees at the time of the hearing. The Court is entitled to assume that there has been no material change in circumstances, including the state of the trees and the degree of obstruction as a consequence of the trees, unless it is otherwise advised by a party: Rodny v Weisbord [2024] NSWCA 183 at [60] and [63]. Mrs Unsworth argued that the Court must assess the degree of obstruction under s 14E(2)(a) having regard only to the evidence of the state of the trees concerned at the time of the hearing, unless otherwise advised. 54 This argument, however, conflates the time at which the assessment of the degree of obstruction must be undertaken with the actual assessment of the degree of obstruction. It may be accepted that s 14E(2) fixes the time of assessment as being when the Court makes an order under s 14D(1). But that does not demand that the assessment is confined to the state of the trees and the degree of obstruction as a consequence of those trees at that precise time. For reasons I have explained, the question of whether the trees concerned are severely obstructing sunlight or a view can be answered by reference to the trees concerned and their obstruction of sunlight or a view over a longer time scale. Based on this longer assessment, the Court determines whether it is satisfied of the matters in s 14E(2)(a) and (b) before it makes an order under s 14D(1). 55 Seventhly, Mrs Unsworth's construction of s 14E(2)(a) as requiring the assessment of the degree of obstruction as a consequence of the trees concerned to have regard only to the state of the trees on the day of the hearing is inconsistent with the statutory purpose of providing a simple and practical scheme for the resolution of disputes between neighbours concerning trees. 56 One inconsistency is that the statutory scheme could be gamed by the neighbour on whose land the trees are situated, such as by the neighbour pruning the trees that are the subject of the application concerned just before the hearing, so as to alter the state of the trees that is to be assessed. This would cause the Court's assessment of the degree of obstruction as a consequence of the trees concerned to vary depending on whether the respondent chooses and is able to prune the trees the subject of the application concerned before the hearing takes place. 57 A second is that the assessment becomes dependent on a factor outside of either neighbours' control - the date on which the Court, in its discretion, fixes the hearing of the application. The date of the hearing of the application could materially affect the Court's assessment of the degree of obstruction as a consequence of the trees concerned. As I have explained for deciduous trees, a hearing fixed in mid-winter rather than mid-summer could materially change the Court's assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned. Even for non-deciduous trees, the degree of obstruction as a consequence of the trees concerned is a product of the phenology of the trees. Plant phenology is the response of plants to variations in climate and environmental conditions such as light, temperature and precipitation. Variations may occur in the long-term or short-term. Long-term changes in the climate system may affect the growing seasons, changing the timing at which leaf growth, flowering and fruiting of plants occurs. Short-term variations in environmental conditions, such as high temperatures and low precipitation, may seriously affect the growth, productivity and health of the plants. A hearing fixed at a time of particular variations in environmental conditions that affect the trees' growth, productivity and health, rather than at another time, may influence the Court's assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned. 58 A third is that, depending on the differences in the relative topography and heights of the trees and the dwelling on the adjoining properties, the Court's assessment of the degree of obstruction of sunlight as a consequence of the trees concerned will vary from mid-winter to mid-summer because of the difference in the angle of the sun. A hearing fixed in mid-winter rather than mid-summer may affect the Court's assessment of the degree of obstruction of sunlight as a consequence of the trees concerned. 59 Mrs Unsworth's construction of the words "are severely obstructing" in s 14E(2)(a), which would give rise to such inconsistencies with the statutory purpose of providing a simple and practical scheme for the resolution of disputes between neighbours concerning trees, is not to be preferred over a construction that does not give rise to such inconsistencies."
5. Though I have not transcribed his Honour's remaining three reasons for rejecting the appeal, they are no less significant, and may be found in Unsworth; at [50]-[59]. At [In Unsworth; at [60] , and [64]-[65], his Honour concluded this issue: "60 For these seven reasons, s 14E(2)(a) of the Trees Act is not to be construed as demanding that the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned be restricted to the state of the trees as at the date of the hearing. The assessment can have regard to the state of the trees over a longer time scale. To the extent Mrs Unsworth's grounds of appeal contended that the Commissioner erred on a question of law by not construing s 14E(2)(a) as so restricting the assessment of the degree of obstruction, I reject those grounds. The Commissioner did not misinterpret s 14E(2)(a)(ii) by not restricting his assessment of the degree of obstruction of the view from Mrs Hennessy's dwelling as a consequence of the trees to the state of the trees on the day of the hearing. The Commissioner could properly assess the degree of obstruction of the view as a consequence of the trees having regard to not only the state of the trees and the obstruction as occurring on the day of the hearing, but also the state of the trees and the obstruction as a consequence of the trees that are going to occur." … "64 The ongoing state of affairs found by the Commissioner, therefore, was of a past state of affairs going into a future state of affairs. The past state of affairs was of a group of trees forming a hedge, which were at the time of making the application and continuing up to two days before the hearing, of a height 600mm above the fence and severely obstructing a view from Mrs Hennessy's house. The future state of affairs was of the same group of trees forming a hedge, which will again be of a height 600mm above the fence and severely obstructing a view from Mrs Hennessy's house. There would be an interregnum between these two periods, after the trees were pruned and before they grow back to their former height, but this gap was found by the Commissioner to be insufficient to displace this finding of "the ongoing state of affairs". 65 These factual findings and conclusions of the Commissioner are not open to challenge on an appeal restricted to errors on questions of law. The Commissioner's assessment of the degree of obstruction as a consequence of the trees was based on his factual findings of the ongoing state of affairs. In these circumstances, the Commissioner's assessment of the degree of view obstruction as a consequence of the trees did not involve error on a question of law. I reject these grounds of appeal."

Findings - s 14A(1)(b) and s 14E(2)(a)

1. Having been pruned about a week prior to the onsite hearing, the trees (bamboo) did not rise to 2.5 m but the Beswick's photographs from 2023 and 2024 in their Tree Dispute Claim Details (Exhibit B) and 'Additional Evidence' (Exhibit C), show tall bamboo growing along the common boundary and arching into the applicants' property, apparently reaching a height of 8-10 m, a height around the top of the applicants' first floor windows. The bamboo is similarly conspicuous above the first-floor windows in Annexure B of Mr Sandig's Affidavit 2. Therefore, I am satisfied the applicants' view obstruction was recently severe.
2. In Affidavit 2, Mr Sandig noted that his gardener regularly pruned and maintained "vegetation along our boundaries with neighbouring properties". However, from the respondent's email's, the respondent's sustained inaction regarding reducing the bamboo's height,, and the long stems shown on the lawn in Annexures D and E of Affidavit 2 as proof of maintenance, it was clear obvious that individual stem removal alone was not going to address the applicants' view obstruction issue.
3. On this basis, the circumstances here are consistent with those of Steber, where the applicants have demonstrated that the obstruction of a view from a window of their dwelling was recently severe and had been severe without abatement for a sustained period. Given the rapid growth rate of slender weavers bamboo (Steber, at [43]), especially when long established, it is reasonable to assume that a severe view obstruction is likely to recur, thus it will be an 'ongoing state'. Consequently, s 14A(1)(b) and s 14E(2)(a) of the Trees Act are satisfied.

Whether the severity of the obstruction outweighs other matters?

1. As s 14E(2)(a) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This 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.
2. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required, as follows: 1. The hedge is located in the respondent's property, parallel and close to the common boundary, but the applicants' first-floor windows nominated for assessment are not in close proximity to the hedge applicant's dwelling (s 14F(a)). 2. The bamboo was planted in 2015, after the construction of the applicants' dwelling but prior to the applicants' occupation in 2020 (s 14F(b)). 3. The applicants contended that the bamboo was 3-4 m tall upon their occupation in 2020, had grown to a height of 8-10 m since that time and was pruned to a height less than 2.5 m about a week before the hearing (s 14F(c)). 4. Under the Ku-ring-gai Development Control Plan 2023, bamboo is considered a tree as it is a perennial plant more than 5 metres tall with at least one self-supporting woody, fibrous stem. It is not included in the list of exempt species but under 'Minor pruning', pruning of stems less than 50mm diameter is exempt from the requirement of a pruning application (s 14F(d)). 5. The bamboo does not have any historical, cultural, social, or scientific value of note (s 14F(f)). 6. As it is exotic and rarely flowers, the hedge is likely to contribute little to native ecosystems and biodiversity (s 14F(g)). 7. The bamboo contributes to the scenic value of the respondent's land but not to public amenity (s 14F(h) and (i)).
3. Mr Sandig's preferred pruning regime is removal of individual stems near ground level, but the Beswick's claimed that insufficient stems have had been removed to provide a meaningful remedy to their view obstruction. In the absence of complete removal, the applicants are seeking sought pruning to a height of 3.5 m to provide views over the bamboo. While a reasonable level of foliage must be retained to maintain health, function, and longevity, the bamboo is well established and vigorous, and sufficiently hardy and resilient to tolerate regular light-moderate pruning to reduce height (ss 14F(k)).
4. In Exhibit 1, the respondent submitted that the hedge made an important contribution to his privacy and that the applicants' upstairs windows "have a significant adverse impact on the privacy in my house (main living areas, kitchen and bedrooms)", back yard, and pool. Mr Sandig claimed his family's exposure to overviewing was amplified by the breadth of his single storey dwelling, and privacy in bedrooms at the dwelling's western end was especially concerning. Given the size and elevated position of the applicants' two-storey dwelling and sightlines between the two parties' dwellings, the bamboo softened the landscape and provided privacy screening (s 14F(l)).
5. Two established trees in front of the upstairs windows also obstructed the applicants' views and provided privacy for both parties, but recent deadwood pruning from the crown of one of the trees had further exposed the applicants' dwelling (s 14F(m)).
6. The respondent has taken some action in the past to prune the bamboo but not meaningful action to reduce the view obstruction (s 14F(n)).
7. The hedge is evergreen though the foliage thins out during winter (s 14F(p)).
8. Section 14F(q) considers the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view, while s 14F(r) considers the part of a dwelling the subject of the application from which (in this case) a view is obstructed. As noted by Galwey AC in Qian; at [65], it is for these issues that the guidance from Tenacity is especially useful.
9. Tenacity includes a four-step process on view sharing, the first three of which are regularly referenced by the Court. In summary, the first step considers the nature of the views affected where: 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.
10. 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.
11. 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 useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
12. Considering the first step, the respondent contended that the view obstruction could not be deemed severe as the views were ordinary, rather than iconic. A view need not be iconic or be a view of water, however, to be severely obstructed. The severity of obstruction is relative to the extent and nature of the view loss, regardless of what the view comprises. Moore SC and Hewett AC discussed this concept in Haindl v Daisch [2011] NSWLEC 1145 (Haindl), at [64], and this approach is consistently followed. In Palmer v Elias [2022] NSWLEC 1671, (Palmer), I found "a distant view of bushland" to be valuable.
13. The Beswick's property was higher than the respondent's, and the applicants' nominated viewing points were from first floor windows in a child's bedroom (V1) and a children's playroom (V2). The respondent contended that view obstruction from a child's bedroom or playroom is not as significant as from living areas and that view obstruction must be assessed relative to the whole of the applicants' available view.
14. Consistent with the third Tenacity step, I concur that the impact of an obstruction on views significance of views from a child's bedroom should be discounted as bedrooms are deemed to be mainly for sleeping. In Barstow v Ainsworth [2023] NSWLEC 1442, at [106], the Court similarly found; "V9 is a lower value viewing location than a living area, as the rumpus room is arranged as a play area like a child's bedroom, and children usually value and focus on views less than adults."
15. The respondent cited Byrne v Davies [2024] NSWLEC 1295 (Byrne); where, at [41], I applied "the Court's interpretation of the words 'a view'", from Haindl; at [26]-[28]: "[26] However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. [27] We give a clear example in the present application, discussed in more detail later in our analysis concerning this location. When standing on the bedroom balcony looking outward, the panoramic single view able to be observed from this point: commences, to the south, with the ridgeline of the kitchen/family room wing of the applicants' house; and turning the eyes from south toward north, proceeds to encompass views towards the Harbour Bridge and those suburban elements in that foreground; then the trees that are the subject of this application; and finally, the entire panorama of the district topography and suburban built form of elements of North Sydney and Mosman from the northern end of the trees through more than 90 degrees to, effectively, the north through the northern open end of the balcony. [28] For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction…"
16. In Exhibit 1, at para 20b, Mr Sandig submitted that the applicants' photographs in Exhibit C "are not representative of the full extent of the views, as the photo's are partial and/or cropped views and carefully angled".
17. Applying the analysis from [27] of Haindl to the Beswick's views from V1 or V2, the panoramic single view spanned more than 100 degrees. About ¾ of the view was gained over Mr Sandig's Lilly Pilly boundary hedge across an arc from about east to south and included Mr Sandig's dwelling and garden, and broad spread native and exotic vegetation including large trees in nearby gardens and streets, many of them Eucalypts: high quality district views. The bamboo spread about 76-8 m wide directly in front of V1 and V2 from a distance of about 11-15 m. The desired views obstructed by the bamboo were bushland towards the south between St Ives Chase and North Turramurra. Until recently, the bamboo hedge had extended uninterrupted westward along the common boundary between Mr Sandig and the neighbour. As a result of Qian, however, orders were made for removal of the respondent's bamboo within 4 m of the neighbour's dwelling which provided the applicants with a bushland view towards the south and south-west.
18. Consideration of the whole view in accordance with Haindl is consistently applied by the Court. In this context, because the bamboo is fairly distant from V1 and V2, the obstruction by the bamboo totalled about ¼ of the breadth of the total available view and remaining district views were broad and deep, heavily vegetated and included some bushland.
19. Under s 14F(s), it is relevant to consider the following three matters arising from the circumstances of the case.;
20. Firstly, the parties disputed whether the applicants had the views they are now seeking upon their 2020 occupation. The respondent claimed that trees on both properties near the boundary screened the applicants and blocked the views that the applicants covet. The applicants claimed they initially enjoyed views "across the valley", presumably over the trees. In Reed & anor v Mason & anor [2013] NSWLEC 1159, at [55], Commissioner Fakes states; "It was not the intent of the 2010 review of the Trees Act (and its extension to include Part 2A) to provide an applicant with more sunlight or views than were available to them when a property was purchased." Thus, an important key question for consideration.
21. The respondent's Annexure B of Exhibit 1 contained 2 images, from 2017 and 2018, of dense billowing canopies of multiple trees along the respondent's boundary that looked sufficiently tall to significantly obstruct views from the applicants' dwelling. The respondent claimed some of these trees were removed once the bamboo usurped their screening role.
22. Image 1 in the applicants' Exhibit C was allegedly taken out through V1 on 28 July 2021 with an iPIpad camera. The camera was aligned fairly level with the base of the window but was sufficiently back within the darkened room that the image was blacked out below the bottom of the window frame. Emerging bamboo stems are visible to the right of the image, the top of a domed tree is prominent in the centre, and distant tall trees occupied both edges, but the base of the photograph was above distant bushland, or and above trees impacting views or privacy in either parties' yard, or and above any part of the respondent's land or dwelling. As
23. Consequently Image 1, which was the applicants only submitted photograph from around the time of their occupation, the Court was provided the Court with insufficient reliable evidence to establish an 'occupation base line' of the extent of view obstruction caused by the bamboo, or by other trees in either yard, or of the other trees' individual and cumulative roles in providing privacy for the respondent.
24. In the respondent's Exhibit 2, Annexure's A-C were images of the applicants' back yard taken between December 2023 and April 2024, containing densely planted trees that I estimated to be about 5-6 m tall, along boundaries shared with Mr Sandig and the side neighbour. Annexure A of Exhibit 1 was a survey extracted from the applicants' 2021 development application (DA) for a pool which showed 5 trees with melded canopies spread fairly evenly along the applicants' entire boundary.
25. On 14 May 2024, the applicants' back garden was revamped with trees along common boundaries with Mr Sandig and their side neighbour removed, and new plantings installed. This resulted in enhanced potential views for the applicants but potentially exposed more of the applicants' dwelling to the respondent which wouldand further compromised the respondent's privacy.
26. Given the inadequacy of the applicants' evidence from the time of their initial occupation relative to the respondent's evidence displaying the presence of substantial common boundary trees before and after this time, I am not persuaded by the applicants' claim as to the extent of views initially available. While I accept the bamboo grew to obstructed the applicants' views to a greater extent than upon the applicants' occupation, my sense of the situation is that the applicants may have initially gained broad but narrow short views over their trees, but the respondent retained a high degree of privacy in his dwelling and yard as a result of the trees.
27. Secondly, the respondent's long Lilly Pilly hedge had been pruned in late 2023 to a height of about 4 m. On page 1 of Exhibit C, the applicants contended, "[w]e have simply maintained our request that the subject bamboo be trimmed to a height equal to the adjacent hedge DS (David Sandig) indicated meets their privacy requirements and would allow us to maintain our view across the valley from the upstairs windows".
28. The respondent submitted that 4 m was about 500 mm below the usual level for pruning the Lilly Pilly's but failed to explain why. The Lilly Pilly hedge displayed a history of repeated pruning, and various exposed stems and branches, absent of regrowth, suggested the hedge trees were heavily stressed. Perhaps the reduced pruning height was a failed attempt to encourage regrowth, but regardless of why, it resulted in a marked loss of privacy for the respondent.
29. I noted no written or oral submission from the respondent suggesting that the Lilly Pilly height met his privacy needs. and Rather, tthe applicants' Images 3 and 4 in Exhibit C showed that it this hedge height didn't provide privacy, as the respondent'shis dwelling windows were extensively exposed. Considering the respondent's consistent focus on the importance of privacy, the applicants' inference that the lower Lilly Pilly hedge height satisfied the respondent's privacy needs and should be similarly applied for the bamboo is unsupported by the case evidence.
30. Thirdly, the Trees Act provides no remedy for neighbour's trees encroaching beyond common boundaries unless they cause damage, which is addressed under Pt 2 of the Act. As this issue arises frequently, the following Tree Dispute Principle was established at [20] of Barker v Kyriakides [2007] NSWLEC 292 (Barker): "It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.""
31. Though the encroachment and debris dropping may be annoying, the Tree Dispute Principle established in Barker has been consistently applied by the Court and appeared reasonable here with respect to bamboo debris described by the applicants and displayed in photographs.

Conclusion

1. Though the respondent pruned the bamboo to below 2.5 m just before the hearing, the circumstances of the case called for the application of the rationale of Steber, whereby the bamboo was determined to be a hedge for the purpose of the Trees Act, at s 14A(1). From consideration of Images 3-6 in Exhibit C, I determined the applicants' view to be severely obstructed, which engaged s 14E(2)(a) of the Trees Act.
2. The respondent's argument that, lawfully, the long-established rationale in Tooth should be favoured and that Steber should not be used, was set aside with consideration of the recent decision of Preston CJ in Unsworth, which confirmed the lawfulness of Steber.
3. In exercising the balancing of interests at s 14E(2)(b), through consideration of elements in s 14F, the use of V1 and V2 for children's bedroom and playroom devalued the significance of the view obstruction s (s 14F(p)). and Further, tthe view obstruction was relatively narrow while the remaining view was broad, deep, and extensively vegetated (s 14F(q)). Conversely, as many windows of the respondent's dwelling faced towards the applicants, the respondent's family were particularly vulnerable to oversight. andUnsurprisingly, t the respondent prioritised privacy (s 14F(l)).
4. Significantly, as it is not the intent of the Trees Act that applicants should gain views that were unavailable upon occupation, the inadequacy of applicants' evidence for establishing a base line relative to the respondent's evidence displaying the presence of extensive common boundary trees before and after the applicants' occupation necessarily compromised the applicants' case.
5. Therefore, on the balance of probabilities, I am not persuaded by the applicants' claim as to the extent of views initially available, nor that the applicants' proposed height of 3.5m for the bamboo is "a height that allows you privacy and reinstates our view across the valley". Pruning to this height would significantly impact the respondent's privacy.
6. There would be a higher level, say around 6 m, at which views, and privacy may be gained simultaneously. but Aas the onus is on the applicant to prove their case, however, I am constrained from making such orders by the applicants' inadequate occupation evidence. Given this the inherent uncertainty, I am reticent to impose orders on the respondent that apply also to the subsequent owner of the respondent's property, and include perpetual regular maintenance that would likely be expensive.
7. Consequently, at s 14E(2)(b) of the Trees Act, I am not satisfied 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. Therefore, the application is refused.
8. Notwithstanding this decision, I would encourage the respondent to manage and maintain the bamboo more effectively than in the past by removing stems growing towards the applicants and pruning the bamboo's height. Clearly, the maintenance regime of individual stem removal was inadequate, and it is not difficult to alternatively connect a hook to the end of a cut previously pruned stem and use this to arch long stems down and reduce their length.
9. Should the bamboo be permitted to return to its prior 'wild' state, I would consider a second application appropriate, whereby the applicants might provide more conclusive evidence and another Commissioner may make an alternative decision.

Orders

1. The Court orders that: 1. The application is refused.

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