Ferguson v Horton

Land and Environment Court (NSW)|2024-01-30

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

This is an application by Susan Ferguson, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) and s 14B of Pt 2A of the Act. Ms Ferguson seeks orders for removal of a bamboo hedge to remedy severe obstruction of views from her dwelling, to prevent bamboo from damaging a boundary fence, and to limit the burden and cost of property maintenance.

Background

Anthea and Gary Horton, the respondents, have owned and occupied a large residential block in Bangalow in northern NSW since 2022. The respondents' land is an irregular shape which extends along a waterway behind their dwelling and borders about five neighbours.
In 2020, the previous owner of the respondents' property had extensively planted Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo) to form garden rooms at the front of the dwelling, landscape features, and privacy screens along boundaries with neighbours.

The onsite hearing

The hearing was conducted onsite. Ms Ferguson was self-represented. Ms Horton and her solicitor, Mr Burrell, were accompanied by Mr Stephen Connelly, a town planner, of Planners North, while Mr Horton was absent.
In initially inspecting the respondents' property, I found the bamboo subject to the application that had been growing adjacent to the common boundary had been removed. Though pruning of bamboo before a hearing is not unusual, I had not encountered pre-trial removal of bamboo, including most of its roots, by an excavating machine.
The Court next assembled at the rear of Ms Ferguson's property for assessment of the impact of the respondents' vegetation on the applicant's views, and for oral submissions. With the boundary bamboo now absent, the applicant claimed that a newly exposed bamboo hedge and an adjoining 'hedge' of Banana plants severely blocked her views.
Mr Burrell sought leave to tender a view assessment report from Mr Connelly and an arborist report from Mr Hugh Taylor (the Taylor report), both of which had been filed with the Court at approximately 11am on 29 January 2024, the day before the hearing. Ms Ferguson opposed acceptance of the reports and claimed their late submission disadvantaged her in the proceedings and contravened the orders made at the directions hearing of 5 December 2023.
After initial filing at the Ballina Court House on 13 October 2023, Ms Ferguson's application was filed with the Land and Environment Court of NSW (LEC) on 1 November 2023. The respondents were familiar with the procedure under the Act and likely timetable for the matter as the Horton's had been respondents in another neighbour's application which was heard onsite on 20 June 2023. Mr Burrell represented the respondents at the June hearing and was thus familiar with the respondents' property and the procedures under the Act.
Mr Burrell filed a Notice of Appearance with the LEC on 13 November 2023, which presumably displayed some preparation for the case. Mr Burrell appeared at the directions hearing of 5 December 2023, from which Order 7 required the respondents "to file any statements, reports, affidavits, photographs, or any other documents upon which the respondent intends to rely at the hearing, with the Court and serve a copy on the applicant and the local council by 4.30pm on 22 December 2023".
Following a bout of illness, the applicant, with Mr Burrell's support, was granted an extension of six days to serve a copy of the orders of 5 December 2023 on the respondents and the local council. As Mr Burrell was present for the making of these orders on 5 December 2023, the applicant's six-day extension was unlikely to affect the respondents' preparation, but procedural fairness dictates that a six-day extension of the respondents' timetable also be granted. This would extend the respondents' filing deadline to 28 December 2023.
On the evening before the onsite hearing, I read an email from the LEC which listed the respondents' two reports, but I had not received copies of the reports. Though Ms Ferguson apparently received the reports one or two days before the hearing, she submitted that she needed about a week to organise friends to help her understand and interpret the reports. Considering that the reports were relatively long and their content outside the expertise of the applicant, I accepted Ms Ferguson's submission. I thus refused the respondents' leave to tender the reports on the basis that the applicant would otherwise be disadvantaged.
Proceedings under the Act are relatively informal and there are many situations where documents are accepted outside the Registrar's timetable, provided neither party is disadvantaged. Mr Burrell demanded an adjournment and criticised the Court's timetable, but there was almost eight weeks between the directions hearing and the final hearing and Mr Burrell provided no reasonable justification for the extraordinarily late reports. Tellingly, the Taylor report was dated 17 December 2023 and Mr Burrell conceded that its late submission to the LEC and to the applicant was due to an administrative error in his office.
The application under Pt 2A of the Act was addressed initially.

Jurisdictional requirements - Part 2A

Part 2A of the Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.
Section 14A(1) states: (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).
Section 14B of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located, any relevant authority, and any other person the applicant has reason to believe will be affected by the order.
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)).
Section 14E of the Act addresses matters of which the Court must be satisfied before making an order: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
Section 14E(2) of the Act is particularly significant. It states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Act.

Is bamboo a tree?

Bamboo is prescribed as a tree for the purposes of the Act in accordance with cl 4 of the Trees (Disputes between Neighbours) Regulation 2014. Slender Weavers Bamboo is increasingly being used for hedges and screening in urban areas and is the subject of many applications to the Court under Pt 2A of the Act.

Do the trees form a hedge?

The first test under the Act, at s 14A(1) is: are the trees a hedge for the purpose of the Act?
Ms Ferguson's proposed orders encompassed the "bamboo on my southern boundary fence" and a "hedge of banana trees". The applicant's diagram at question 2 of Form G also showed a row of the respondents' bamboo which commenced about 1.5 m from the south-eastern corner of the applicant's land and extended diagonally into the respondents' land, towards the bananas. The applicant's proposed orders specified the bamboo along the boundary but did not reference this second diagonal row of bamboo.
The bamboo growing along the common boundary fence had been removed before the hearing. Therefore, it did not rise to a height of at least 2.5 m at the final hearing and thus did not satisfy s 14A(1)(b) of the Act. As noted in Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), at [57]; "…..We consider that the ordinary, plain English meaning of the words rise at least does not intend and cannot imply that they should be read as also embracing will rise at least at some future unspecified time."
Had the boundary bamboo not been removed before the hearing, Mr Burrell also noted a fault in the application that would have excluded the boundary bamboo from the jurisdiction of the Act. The applicant's photographs from Form G displayed the bamboo pruned to about 700 mm high on 23 August 2023, and at a similar height on 4 October 2023. Consequently, when the application was lodged on either 13 October 2023 at Ballina Court House or 1 November 2023 at the LEC, the bamboo subject of the application would have been well below the top of the common boundary fence and invisible to Ms Ferguson, and the boundary bamboo thus could not have been obstructing the applicant's views.
With respect to Ms Ferguson's proposed order for removal of a "hedge of banana trees", I am not satisfied that the bananas meet the specific requirements of s 14A(1)(a) of the Act, of "planted (whether in the ground or otherwise) so as to form a hedge", for the following reasons.
The respondents submitted that bananas were growing in various locations on their property upon occupation, and that offshoots propagated naturally at the base of stems and cumulatively grew into clumps. This is consistent with natural banana growth and with the appearance of the clump of bananas in question. Ms Ferguson made no claim as to the origin or planting of the bananas and, as with the bamboo, it was likely planted by the previous owner of the Horton property.
The banana clump included many tightly bunched stems, one or some of which may have been planted, but there was no sign of human intervention or of an orderly pattern that even hinted that the bananas formed a hedge for the purpose of the Act. A row of bananas in a plantation may form a hedge for the purpose of the Act, but a clump of bananas, however large, that has grown naturally without intervention, may not.
The requirements of a hedge under the Act are explored in Wisdom, at [44]-[46]; "44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings. 45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge. 46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded."
In Welsh v Radford [2023] NSWLEC 1095, at [59]-[60], the applicant claimed that bamboo was a unique type of tree where each stem of the bamboo had the capacity to grow independently, and the stems are merely arranged in a clump, such that a bamboo plant should be considered a hedge in its own right. The Court, however, rejected this submission "as each stem of clumping bamboo is and remains connected within the clump and the clump functions as a unit". I view the banana clump similarly in this case, regardless that stems may break off the clump and have independent root systems.
In Johnson v Angus (2012) 190 LGERA334; [2012] NSWLEC 192 (Johnson), at [38]-[39], Preston CJ provides commentary on the language of s 14A(1)(a); "[38] If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees. [39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge."
Although from the applicant's perspective, the banana clump may perform the role of a hedge by obstructing her views, a probable intention to plant the trees "so as to form a hedge" is required for satisfaction of s 14A(1)(a) of the Act. No evidence of such intention has been provided by the applicant and the bananas displayed no spatial regularity or other common characteristics of a hedge. Therefore, s 14A(1)(a) is not engaged and the bananas are not a hedge for the purpose of the Act.
As s 14A(1) of the Act has not been engaged by either the boundary bamboo or the clump of bananas, and the diagonal row of bamboo was not included in Ms Ferguson's proposed orders, the Court has no powers to make orders. Consequently, the application under Pt 2A is refused and there is no need to consider subsequent requirements of the jurisdiction.
Nonetheless, had the application progressed to assessment of obstruction of Ms Ferguson's views as a consequence of the bananas and the diagonal row of bamboo, the impact of the obstruction would be determined as less than severe.
Ms Ferguson submitted that the "beautiful scenic rural view" available upon purchasing her property had been severely obstructed by the bamboo hedges and growth of other vegetation on the respondents' land.
In assessing the severity of a view obstruction, the Court has often taken guidance from a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).
The first three steps of the four-step process in Tenacity are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected - water views are valued more highly than land views, and iconic views such as the Opera House, the Harbour Bridge or North Head, are particularly valued. Whole views are valued more highly than partial views, and the interface between land and water is valued.
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.
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.
Regarding step one of Tenacity, Mr Burrell submitted that the applicant's potential views from her dwelling were nondescript views of residential Bangalow, of insufficient value to render their obstruction severe. I, however, concur with Galwey AC in Robinson v Nagle [2021] NSWLEC 1356, who, at [23], notes that "any view might be important to an applicant" and that obstruction of views without icons, "perhaps a view of parkland, or the suburban landscape" warrants consideration under Pt 2A of the Act.
Considering the second step of Tenacity, "the expectation to retain side views and sitting views is often unrealistic". Though the boundary bamboo obstructed the applicant's view over her rear boundary, Ms Ferguson's desired view included the respondents' wide, deep property, much of which required viewing across side boundaries.
Two photographs of the site, included with Form G, displayed a stark difference between the extent and size of vegetation on the respondents' land upon the applicant's occupation in January 2021, and the present. Though I was not persuaded by Mr Burrell's argument that consideration be given to hypothetical developments on the respondents' land that may also block the applicant's view, the jurisdiction of Pt 2A of the Act intentionally excludes remedy for obstruction of views or sunlight by individual trees, or by groups of trees not planted so as to form a hedge.
The rapid growth of trees and shrubs on the respondents' land since January 2021, including native pioneer plants, has significantly altered and obstructed the applicant's view and this is likely to continue. Even if the diagonal bamboo and the bananas were removed, the trees and shrubs growing vigorously behind them are likely to maintain view obstructions.
Though Ms Ferguson focussed primarily on the proximal view obstruction by the bamboo and bananas, "…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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis" (Haindl v Daisch [2011] NSWLEC 1145, at [26]).
Therefore, the applicant's overall view included bamboo and bananas, lush vegetation on and beyond the respondents' land, neighbouring dwellings and gardens, a commanding Bunya Pine and large Eucalyptus trees on a ridge towards the south-west and a potential deep, distant view towards the east, south-east, which was obstructed by the applicant's own vegetation. Given the nature and extent of the remaining view, regardless that it is not the view the applicant desired or had upon occupation, obstruction of the applicant's overall view by the bananas and diagonal bamboo would not be a severe obstruction.

Jurisdictional requirements - Pt 2

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court's ability to make orders is limited, at s 10 of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
If the jurisdictional tests at s 10 of the Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Act.

Reasonable effort to reach agreement

Mr Burrell challenged whether the applicant had made a reasonable effort to reach agreement because the boundary bamboo was now removed, the bananas were not mentioned before the application, and the applicant made no compromise during negotiations. During my inspection, however, I observed residual bamboo roots in soil near the common boundary and culms emerging amongst the applicant's hedge.
The Act provides no prescription regarding conduct or negotiation style to satisfy this requirement. In the Tree Dispute Claim Details (Form H), after question 32, the applicant provided copies of the parties' communication in which the applicant repeatedly requested bamboo removal over a sustained period. This is sufficient to satisfy s 10(1)(a) and Ms Ferguson also provided evidence which engaged s 10(1)(b) of the Act.
Any likelihood of near future damage to the common boundary fence was eliminated by the removal of the boundary bamboo hedge. Therefore, the residual issues in the Pt 2 application were culms encroaching, and debris falling or blowing, onto the applicant's land.
While orders may have been appropriate for the respondents to remove residual encroaching culms and roots from the applicant's land, Ms Ferguson said; "If I can't get my view back, I don't want to proceed further, and I will deal with any residual suckers".
In the absence of the boundary bamboo, Ms Ferguson's maintenance burden would be much reduced but, in any case, unless the debris caused or was causing damage, there is no remedy under the Act.
In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], the Court established the following Tree Dispute Principle: "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."
This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applied here with respect to all debris described by the applicant and observed on her ground surfaces.

Conclusions

In the application under Pt 2A of the Act, the respondents excavated the boundary bamboo before the final hearing, a second row of bamboo extending diagonally away from Ms Ferguson's land was not included in the applicant's proposed orders, and a clump of bananas was determined not to meet the requirements of a hedge under the jurisdiction of the Act. Therefore, s 14A(1) of the Act was not satisfied and the Pt 2A application was thus refused.
Under the Pt 2 application, the excavation of the boundary bamboo before the final hearing removed the likelihood of damage to the common boundary fence in the near future, the maintenance burden from debris falling and blowing onto the applicant's land was addressed with consideration of the Tree Dispute Principle established at [20] of Barker, and Ms Ferguson chose to manage the residual bamboo suckers on her land. Consequently, the application under Pt 2 of the Act was also refused.
This case illustrates the significant impacts and burdens that regularly arise from the use of Slender Weavers Bamboo. In the three years between January 2021 and January 2024, the bamboo had grown from small clumps about 1 m tall to dense broad clumps about 10 m tall. Parties regularly include correspondence from "bamboo merchants" which consistently claims that the growth of Slender Weavers Bamboo is 'non-invasive' and that it lacks the ability to cause damage to surrounding objects. This is incorrect.
Though Slender Weavers Bamboo is generally less problematic than rhizomatous bamboo varieties, it has considerable potential to spread, cause damage to encountered objects such as fences, and rapidly obstruct sunlight and views. Given its growth rate, Slender Weavers Bamboo is also difficult and often expensive to effectively maintain. Ms Horton advised Ms Ferguson that removal of bamboo to satisfy orders arising from their neighbours' case, Zarate v Horton [2023] NSWLEC 1375, had cost the respondents many thousands of dollars.

Orders

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

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(2) The Court must not make an order under this Part unless it is satisfied:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Act.

Bamboo is prescribed as a tree for the purposes of the Act in accordance with cl 4 of the Trees (Disputes between Neighbours) Regulation 2014. Slender Weavers Bamboo is increasingly being used for hedges and screening in urban areas and is the subject of many applications to the Court under Pt 2A of the Act.

The first test under the Act, at s 14A(1) is: are the trees a hedge for the purpose of the Act?
Ms Ferguson's proposed orders encompassed the "bamboo on my southern boundary fence" and a "hedge of banana trees". The applicant's diagram at question 2 of Form G also showed a row of the respondents' bamboo which commenced about 1.5 m from the south-eastern corner of the applicant's land and extended diagonally into the respondents' land, towards the bananas. The applicant's proposed orders specified the bamboo along the boundary but did not reference this second diagonal row of bamboo.
The bamboo growing along the common boundary fence had been removed before the hearing. Therefore, it did not rise to a height of at least 2.5 m at the final hearing and thus did not satisfy s 14A(1)(b) of the Act. As noted in Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), at [57];

".....We consider that the ordinary, plain English meaning of the words rise at least does not intend and cannot imply that they should be read as also embracing will rise at least at some future unspecified time."

Had the boundary bamboo not been removed before the hearing, Mr Burrell also noted a fault in the application that would have excluded the boundary bamboo from the jurisdiction of the Act. The applicant's photographs from Form G displayed the bamboo pruned to about 700 mm high on 23 August 2023, and at a similar height on 4 October 2023. Consequently, when the application was lodged on either 13 October 2023 at Ballina Court House or 1 November 2023 at the LEC, the bamboo subject of the application would have been well below the top of the common boundary fence and invisible to Ms Ferguson, and the boundary bamboo thus could not have been obstructing the applicant's views.
With respect to Ms Ferguson's proposed order for removal of a "hedge of banana trees", I am not satisfied that the bananas meet the specific requirements of s 14A(1)(a) of the Act, of "planted (whether in the ground or otherwise) so as to form a hedge", for the following reasons.
The respondents submitted that bananas were growing in various locations on their property upon occupation, and that offshoots propagated naturally at the base of stems and cumulatively grew into clumps. This is consistent with natural banana growth and with the appearance of the clump of bananas in question. Ms Ferguson made no claim as to the origin or planting of the bananas and, as with the bamboo, it was likely planted by the previous owner of the Horton property.
The banana clump included many tightly bunched stems, one or some of which may have been planted, but there was no sign of human intervention or of an orderly pattern that even hinted that the bananas formed a hedge for the purpose of the Act. A row of bananas in a plantation may form a hedge for the purpose of the Act, but a clump of bananas, however large, that has grown naturally without intervention, may not.
The requirements of a hedge under the Act are explored in Wisdom, at [44]-[46];

"44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings.

45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.

46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded."

In Welsh v Radford [2023] NSWLEC 1095, at [59]-[60], the applicant claimed that bamboo was a unique type of tree where each stem of the bamboo had the capacity to grow independently, and the stems are merely arranged in a clump, such that a bamboo plant should be considered a hedge in its own right. The Court, however, rejected this submission "as each stem of clumping bamboo is and remains connected within the clump and the clump functions as a unit". I view the banana clump similarly in this case, regardless that stems may break off the clump and have independent root systems.
In Johnson v Angus (2012) 190 LGERA334; [2012] NSWLEC 192 (Johnson), at [38]-[39], Preston CJ provides commentary on the language of s 14A(1)(a);

"[38] If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees.

[39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge."

Although from the applicant's perspective, the banana clump may perform the role of a hedge by obstructing her views, a probable intention to plant the trees "so as to form a hedge" is required for satisfaction of s 14A(1)(a) of the Act. No evidence of such intention has been provided by the applicant and the bananas displayed no spatial regularity or other common characteristics of a hedge. Therefore, s 14A(1)(a) is not engaged and the bananas are not a hedge for the purpose of the Act.
As s 14A(1) of the Act has not been engaged by either the boundary bamboo or the clump of bananas, and the diagonal row of bamboo was not included in Ms Ferguson's proposed orders, the Court has no powers to make orders. Consequently, the application under Pt 2A is refused and there is no need to consider subsequent requirements of the jurisdiction.
Nonetheless, had the application progressed to assessment of obstruction of Ms Ferguson's views as a consequence of the bananas and the diagonal row of bamboo, the impact of the obstruction would be determined as less than severe.
Ms Ferguson submitted that the "beautiful scenic rural view" available upon purchasing her property had been severely obstructed by the bamboo hedges and growth of other vegetation on the respondents' land.
In assessing the severity of a view obstruction, the Court has often taken guidance from a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).
The first three steps of the four-step process in Tenacity are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected - water views are valued more highly than land views, and iconic views such as the Opera House, the Harbour Bridge or North Head, are particularly valued. Whole views are valued more highly than partial views, and the interface between land and water is valued.
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.
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.
Regarding step one of Tenacity, Mr Burrell submitted that the applicant's potential views from her dwelling were nondescript views of residential Bangalow, of insufficient value to render their obstruction severe. I, however, concur with Galwey AC in Robinson v Nagle [2021] NSWLEC 1356, who, at [23], notes that "any view might be important to an applicant" and that obstruction of views without icons, "perhaps a view of parkland, or the suburban landscape" warrants consideration under Pt 2A of the Act.
Considering the second step of Tenacity, "the expectation to retain side views and sitting views is often unrealistic". Though the boundary bamboo obstructed the applicant's view over her rear boundary, Ms Ferguson's desired view included the respondents' wide, deep property, much of which required viewing across side boundaries.
Two photographs of the site, included with Form G, displayed a stark difference between the extent and size of vegetation on the respondents' land upon the applicant's occupation in January 2021, and the present. Though I was not persuaded by Mr Burrell's argument that consideration be given to hypothetical developments on the respondents' land that may also block the applicant's view, the jurisdiction of Pt 2A of the Act intentionally excludes remedy for obstruction of views or sunlight by individual trees, or by groups of trees not planted so as to form a hedge.
The rapid growth of trees and shrubs on the respondents' land since January 2021, including native pioneer plants, has significantly altered and obstructed the applicant's view and this is likely to continue. Even if the diagonal bamboo and the bananas were removed, the trees and shrubs growing vigorously behind them are likely to maintain view obstructions.
Though Ms Ferguson focussed primarily on the proximal view obstruction by the bamboo and bananas, "...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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis" (Haindl v Daisch [2011] NSWLEC 1145, at [26]).
Therefore, the applicant's overall view included bamboo and bananas, lush vegetation on and beyond the respondents' land, neighbouring dwellings and gardens, a commanding Bunya Pine and large Eucalyptus trees on a ridge towards the south-west and a potential deep, distant view towards the east, south-east, which was obstructed by the applicant's own vegetation. Given the nature and extent of the remaining view, regardless that it is not the view the applicant desired or had upon occupation, obstruction of the applicant's overall view by the bananas and diagonal bamboo would not be a severe obstruction.

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court's ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

If the jurisdictional tests at s 10 of the Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Act.

Mr Burrell challenged whether the applicant had made a reasonable effort to reach agreement because the boundary bamboo was now removed, the bananas were not mentioned before the application, and the applicant made no compromise during negotiations. During my inspection, however, I observed residual bamboo roots in soil near the common boundary and culms emerging amongst the applicant's hedge.
The Act provides no prescription regarding conduct or negotiation style to satisfy this requirement. In the Tree Dispute Claim Details (Form H), after question 32, the applicant provided copies of the parties' communication in which the applicant repeatedly requested bamboo removal over a sustained period. This is sufficient to satisfy s 10(1)(a) and Ms Ferguson also provided evidence which engaged s 10(1)(b) of the Act.
Any likelihood of near future damage to the common boundary fence was eliminated by the removal of the boundary bamboo hedge. Therefore, the residual issues in the Pt 2 application were culms encroaching, and debris falling or blowing, onto the applicant's land.
While orders may have been appropriate for the respondents to remove residual encroaching culms and roots from the applicant's land, Ms Ferguson said; "If I can't get my view back, I don't want to proceed further, and I will deal with any residual suckers".
In the absence of the boundary bamboo, Ms Ferguson's maintenance burden would be much reduced but, in any case, unless the debris caused or was causing damage, there is no remedy under the Act.
In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], the Court established the following Tree Dispute Principle:

"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."

This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applied here with respect to all debris described by the applicant and observed on her ground surfaces.

In the application under Pt 2A of the Act, the respondents excavated the boundary bamboo before the final hearing, a second row of bamboo extending diagonally away from Ms Ferguson's land was not included in the applicant's proposed orders, and a clump of bananas was determined not to meet the requirements of a hedge under the jurisdiction of the Act. Therefore, s 14A(1) of the Act was not satisfied and the Pt 2A application was thus refused.
Under the Pt 2 application, the excavation of the boundary bamboo before the final hearing removed the likelihood of damage to the common boundary fence in the near future, the maintenance burden from debris falling and blowing onto the applicant's land was addressed with consideration of the Tree Dispute Principle established at [20] of Barker, and Ms Ferguson chose to manage the residual bamboo suckers on her land. Consequently, the application under Pt 2 of the Act was also refused.
This case illustrates the significant impacts and burdens that regularly arise from the use of Slender Weavers Bamboo. In the three years between January 2021 and January 2024, the bamboo had grown from small clumps about 1 m tall to dense broad clumps about 10 m tall. Parties regularly include correspondence from "bamboo merchants" which consistently claims that the growth of Slender Weavers Bamboo is 'non-invasive' and that it lacks the ability to cause damage to surrounding objects. This is incorrect.
Though Slender Weavers Bamboo is generally less problematic than rhizomatous bamboo varieties, it has considerable potential to spread, cause damage to encountered objects such as fences, and rapidly obstruct sunlight and views. Given its growth rate, Slender Weavers Bamboo is also difficult and often expensive to effectively maintain. Ms Horton advised Ms Ferguson that removal of bamboo to satisfy orders arising from their neighbours' case, Zarate v Horton [2023] NSWLEC 1375, had cost the respondents many thousands of dollars.

(Disputes Between Neighbours) Act 2006

Trees (Disputes between Neighbours) Regulation 2014

(Disputes between Neighbours) Act 2006

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