Carter v MKTK Pty Ltd

Carter v MKTK Pty Ltd - [2021] NSWLEC 1787 - NSWLEC 2021 case summary — Zoe

[15]

Sunlight obstruction

The front of Ms Carter's dwelling faces roughly northeast, so the side of her dwelling near the bamboo faces roughly northwest, providing an opportunity to gain solar access throughout the afternoon, especially in winter when it is most valued. When Ms Carter arranged replacement of the fence on the common boundary, she went to the additional effort and expense of including transparent panels in the fence to allow sunlight to reach windows on this side of her dwelling. The bamboo, which Mr Keegan says has been there for at least 33 years, was, at the time Ms Carter replaced the fence, pruned around the transparent fence panels. While Mr Keegan says there was no formal agreement to maintain the bamboo hedge around the transparent panels, I take it there was some discussion and some level of informal agreement, to such an extent that was sufficient to give Ms Carter the confidence to proceed with inclusion of the transparent panels. Afterwards, for a period, Mr Keegan arranged for the bamboo to be pruned around those panels to keep them clear.
Ms Carter has not provided shadow diagrams. She was self-represented, and relied principally on Mr Atkins' report and her own submissions. The extent of Mr Atkins' discussion of this issue is found on page 14 of his report: "Bamboo has been permitted to exceed the agreed height and restricts natural light to Ms Carter's property."
Ms Carter submitted that the bamboo was cut lower than the transparent panels at the time she replaced the fence, allowing sunlight to reach windows on the north-western side of her dwelling. Mr Keegan, at par 21 of his affidavit, stated that he instructs a garden maintenance contractor to hedge the top of the bamboo level with the fence line. Photographs in Mr Atkins' report show the bamboo extending approximately one metre beyond the top of the 3-metre fence, so it was approximately 4 metres tall when Mr Atkins attended the site on 13 April 2021. Ms Carter submitted that the bamboo obstructs sunlight to her windows, especially where the bamboo covers the transparent fence panels. Mr Kilmurray, solicitor for the respondent, visited Ms Carter's property at midday on 20 August 2021 and took photographs, which are attached to his affidavit (Exhibit 1). Mr Kilmurray submitted for the respondent that his photographs show there is no sunlight obstruction, as Ms Carter's windows are in direct sunlight in those photographs. The bamboo appears to have been pruned since Mr Atkins took photographs in April, as Mr Kilmurray's photos show it to be only just above fence height. Ms Carter submitted in reply that the photographs were taken around midday, when the sun is just past its highest point in the sky, so that its light passes between her roof and the bamboo. From a short time later, and then throughout the afternoon, sunlight is obstructed by the bamboo.

[16]

Findings

I find the bamboo severely obstructs sunlight to two windows of Ms Carter's dwelling. I find Ms Carter's submissions in response to Mr Kilmurray's photographs aptly describe the situation. His photos were taken during the short window of time following midday when the sun has passed far enough westward of its highest point that its light can directly hit these windows (rather than just her roof) but before the bamboo's shadow falls on the windows. As the sun moves further westward, the bamboo would prevent its light directly hitting the windows. The obstruction would then continue throughout the afternoon. This is the only sunlight available to these windows, and indeed the only sunlight available to the rear part of Ms Carter's dwelling. Were it not for the bamboo, these windows would receive several hours of afternoon sunlight, partly enabled by the fence's transparent panels.
In Mr Kilmurray's August photos, the bamboo is around the height of the fence. In Mr Atkins' April photos, it is approximately one metre taller. It follows that the window of time during which direct sunlight reaches these windows was longer in August than in April. That time window is unquantified in either situation, but would clearly be a very limited period when the bamboo is 4 metres tall.
Although there have been periods when the respondent arranged for the bamboo to be pruned around the transparent panels, the general state of affairs has recently been that it grows over and obstructs the panels. By Mr Keegan's own statement (Exhibit 2, pars 24, 25) he stopped responding to Ms Carter's requests to prune the bamboo in early 2020. Furthermore, while the bamboo might have been closer to 3 metres tall at the time of the hearing, it was ~4 metres tall earlier in the year. I found in Steber v Job [2019] NSWLEC 1308 that the Court should consider the ongoing state of affairs when determining the severity of sunlight or view obstruction at a 14E(2)(a) of the Trees Act, rather than just a snapshot of the situation on the day of the hearing. With this in mind, I find that the bamboo has severely obstructed sunlight to Ms Carter's windows, and will continue to do so - therefore, it is causing a severe obstruction of sunlight.

[17]

Matters at s 14F

I have considered the matters at s 14F of the Trees Act and discuss those that are relevant below.
The bamboo is close to the boundary, growing up against the fence, less than a metre from Ms Carter's dwelling. Above the fence, the bamboo overhangs the boundary. Bamboo also spreads into Ms Carter's property, with shoots coming up on her side of the fence.
The bamboo has been here for more than 30 years. It was at least 3 metres tall when Ms Carter purchased her property in 2014. When the boundary fence was replaced the bamboo was pruned around the fence's transparent panels. Part 2A of the Trees Act was intended to provide relief to those who have lost access to sunlight or views: see McDougall v Philip [2011] NSWLEC 1280 at [21]-[24]. I am satisfied that Ms Carter had access to sunlight that is now obstructed by bamboo - she is not seeking access to sunlight that was always unavailable to her.
On my reading of the controls at clause 5.03.01 of the Newcastle Development Control Plan 2012, the respondent could prune or remove the bamboo without requiring consent from Newcastle City Council, due to its proximity to a dwelling and the small size of each individual stem.
The bamboo provides a screen along one side of the respondent's courtyard, softening and greening the landscape. Beyond this, the bamboo provides little benefit to public amenity or to local environmental values.
The bamboo can be pruned without adversely affecting its future growth or long-term viability. It has been pruned and maintained as a hedge in the past, including hedging around the transparent fence panels. Mr Kilmurray submitted that hedging the bamboo around the panels was, and would be, unsightly.
During the afternoon, bamboo is the principal cause of sunlight obstruction to Ms Carter's windows.
Ms Carter has taken steps firstly to maximise her sunlight access by installing transparent panels in the fence, and secondly to continue this benefit by negotiating with Mr Keegan to maintain the bamboo clear of those panels, at least for a period. The Court has limited information regarding other issues and the breakdown of discussions between the parties, and the changing nature of their relationship, but I am satisfied that Ms Carter has done what she can to achieve her desired outcome on the issue of the bamboo.
Mr Keegan responded positively to Ms Carter's requests for some years. He arranged for his gardening contractor to hedge the bamboo around the transparent fence panels and to remove bamboo shoots from within Ms Carter's property. To me, his actions demonstrate that he acknowledges the potential nuisance caused to Ms Carter by the bamboo. He ceased these actions some time in 2020 when Ms Carter began other proceedings relating to noise abatement. Thereafter the nature of communications between the parties turned acrimonious. Allowing for the possibility that the Court might find the bamboo causes a severe sunlight obstruction, the respondent proposed alternative orders, which Mr Kilmurray said were more than enough to deal with the dispute. Proposed alternative orders for the Pt 2A application are as follows: "1. The respondent is to cut the bamboo hedge in line with the fence line, which is situated on the eastern boundary of the respondent's property, monthly. 2. Maintenance in respect of Order 2 [sic - "Order 1" probably intended here] will commence 7 days after the date of these Orders."
The respondent also proposed alternative orders for the Pt 2 application, including installation by the respondent of a root barrier along Ms Carter's side of the boundary, and ongoing monthly removal by the respondent of bamboo shoots within Ms Carter's property.
Adduced evidence regarding the duration of sunlight obstruction is limited. Mr Kilmurray's photographic efforts to demonstrate that the obstruction is minimal were not persuasive, given the time of day at which he took those photographs. To some extent, the situation is self-explanatory: the bamboo forms a tall dense screen only a metre from Ms Carter's northwest-facing windows. Above approximately 2.1 metres, being the height of the bottom of the transparent panels, there is nothing else causing the obstruction. Ms Carter pointed out that the building on the respondent's property is a significant distance to the west. I find the bamboo would obstruct sunlight to these windows for several hours each afternoon, including during the cooler seasons when the sunlight is most desired. The bamboo is evergreen, so its screening effect is persistent throughout the year.
It appears that the windows to which sunlight is obstructed are to a bedroom and bathroom of Ms Carter's dwelling. They are the only windows along this side of the dwelling. The northeast-facing front of the dwelling is narrow; the dwelling's eastern side is close enough to the neighbouring dwelling to the east that only limited, if any, sunlight would enter the dwelling on that side. I accept that the sunlight obtained through the two windows in this application is highly valued by Ms Carter. This is supported by her efforts to maximise sunlight access when replacing the fence. Sunlight through these windows is the main source of natural light to the back section of her dwelling.
Considering the above, and weighing the benefits of making orders to Ms Carter against the possible drawbacks to the respondent, I find orders should be made to restore solar access to Ms Carter's windows. I have given considerable thought to the nature of those orders. My reasons for reaching the final orders are set out below.
The bamboo provides a tall dense screen requiring regular ongoing pruning, or removal, to prevent the severe sunlight obstruction recurring.
Despite Ms Carter's application for orders to remove the bamboo, I accept the respondent's argument that it provides them with significant amenity, as it has done for many years.
Retaining the bamboo, while preventing a severe sunlight obstruction, will require initial and ongoing effort for the respondent, which some might find onerous. The respondent has expressed a willingness to undertake such effort by submitting their proposed alternative orders. Pruning every three months should maintain most of Ms Carter's solar access.
Regular pruning can maintain the bamboo's height. Pruning it to fence height would minimise bamboo shoots overhanging the boundary fence but would not remove the bamboo's obstruction of sunlight through the transparent fence panels. Minimising the obstruction can be achieved two ways: firstly, by reducing the bamboo's height; and secondly, by increasing its horizontal distance from the fence's transparent panels. Mr Kilmurray submitted that pruning the bamboo around the transparent panels, while maintaining the remainder of the bamboo at fence height, would be unsightly. I accept this. To me, a better outcome would be to prune the whole hedge in the one manner, even those parts not obstructing sunlight to the windows. Such an approach has been taken by the Court previously, for instance in Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215. The best outcome here would be to prune all the bamboo to the height of the bottom of the transparent fence panels. The impact of regrowth between pruning events could be minimised by also clearing bamboo that is closest to the fence.
Bamboo shoots growing up on Ms Carter's property, if left to grow, would eventually contribute to the sunlight obstruction. The respondent proposed alternative orders for monthly removal of such shoots under the Pt 2 application, but I found no basis for making orders under Ms Carter's Pt 2 application. With the bamboo's benefits falling almost entirely to the respondent, it seems unreasonable for the respondent to expect that Ms Carter regularly removes bamboo growth in her own property to prevent it growing and obstructing sunlight. While the respondent might be willing to deal with the issue, as expressed in their Pt 2 proposed alternative orders, I am reluctant to make orders requiring ongoing regular access for the respondent or their contractor to the applicant's property, given the nature of the relationship between the parties. For this reason, I prefer the respondent's own suggestion that a root barrier be installed.
The respondent suggested that a root barrier, if needed, could be installed on Ms Carter's property alongside the boundary fence for the length of the bamboo. I find that locating the root barrier on the respondent's property is to be preferred. Again, this avoids the need for access to Ms Carter's property during its installation and also for its future maintenance. Installing a root barrier on the applicant's side of the fence would require that bamboo be removed within 500 mm or so of the fence. Not only would that allow access to this area for installing the barrier, it creates some distance between the bamboo and the fence, minimising the potential for sunlight obstruction between pruning events. Maintaining this cleared area along the fence will also provide access to assist with ongoing pruning of the hedge and for future maintenance of the root barrier.
As a result of the orders below, bamboo is unlikely to spread from the respondent's property into Ms Carter's property. However, Ms Carter will be responsible for removing any existing bamboo on her property and for removing or controlling any bamboo that grows on her property in future.

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