Glossop v Johnson

Land and Environment Court (NSW)|2020-09-18

Background to the application

During the time that Graeme and Michele Glossop ('the applicants') have owned their Forster property, Kevin and Jeanette Maree Johnson ('the respondents') have constructed a dwelling on the neighbouring property to the Glossops' north. The Johnsons have owned the land for some 25 years, and built on it five years ago. They planted bamboo along the common boundary to provide screening. The bamboo grew quickly to be taller than the roof gutters of these double-storey dwellings.
The Glossops found the bamboo obstructed their sunlight. They asked the Johnsons to prune the bamboo, to no avail. They applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the bamboo to be removed, or in the alternative, for it to be pruned and a root barrier installed. Prior to the hearing, the Johnsons pruned the bamboo, so that it is now at the height of the Glossops' roof guttering.

The hearing

Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties' submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection. The parties provided numerous photographs illustrating the situation.

Framework for this decision

For the Court to make orders under Part 2A of the Trees Act, several jurisdictional tests must be met:

The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);
The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));
The trees must be severely obstructing either sunlight to a window of the applicant's dwelling, or a view from the dwelling (s 14E(2)(a)); and
The obstruction is such that the applicant's interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The applicants have not applied for orders under Pt 2 of the Trees Act, so orders cannot be made to prevent damage.

The bamboo forms a hedge

The respondents planted a row of bamboo adjacent to their common boundary. Bamboo is a grass, but according to the Trees (Disputes Between Neighbours) Regulation 2019, it is a tree for the purposes of the Trees Act. The bamboo grew to form a dense screen approximately 6-8 metres tall for a length of some 15 metres along the boundary. I am satisfied that the bamboo is planted so as to form a hedge more than 2.5 metres tall.

The applicants made reasonable effort

In July 2018, Mr and Mrs Glossop requested mediation with the respondents via the NSW Community Justice Centre. The Johnsons refused mediation. In August 2018 the applicants wrote a letter to the respondents outlining their issues and asking the respondents to prune the bamboo. The respondents engaged Mr Vaughan, a lawyer, whose correspondence in reply to the applicants in October 2018 explained that the respondents were of the opinion that the hedge did not adversely affect the applicants. The Glossops subsequently applied to the Court. The applicants' efforts to reach agreement have been reasonable.

The bamboo does not severely obstruct the applicants' view

Although their application claimed a loss of views, their only submission regarding view loss concerned a photo taken from a north-facing window to the Glossops' upstairs office. If not for the bamboo, the view would be of the Johnsons' dwelling. The bamboo does not cause a severe obstruction of views.

The bamboo severely obstructs sunlight to the applicants' windows

The Court's jurisdiction to make orders here rests on whether I find that the bamboo severely obstructs sunlight to a window of the Glossops' dwelling. Furthermore, I must be satisfied that the Glossops' interests in gaining orders to interfere with the hedge outweigh any reasons that would discourage such interference.
The Glossops' issues with the bamboo extend to its shading of their garden and clothesline, its invasion across the boundary, and the debris it drops on their property. These issues do not fall within the jurisdictional test at s 14E(2)(a), where the bamboo's obstruction of sunlight to the applicants' windows is the only relevant test. They may be relevant to consider under s 14F.
Since the Glossops filed their Court application, the Johnsons have pruned the bamboo. The Glossops say it is now approximately 5 metres tall; the Johnsons say it is 4.2-4.6 m. Before it was pruned, the bamboo clearly prevented sunlight reaching the Glossops' north-facing wall from autumn through to spring.
The Johnsons submitted that, at the time of the hearing, much of the bamboo's shading of the applicants' windows has been addressed.
Photographs show the Glossops' two affected windows: an upstairs office window facing north, towards the hedge, and a downstairs window at the rear of their dwelling facing west, toward the rear of their property. The windows are partially shaded by other obstructions, including the Johnsons' dwelling, with some minor shading caused by the bamboo. In none of the photos could the shading caused by bamboo be considered as 'severe'. However the situation has changed recently. Before the Johnsons pruned the bamboo, it was taller, more than 6 metres tall and possibly up to 8 metres tall. It is to the north of the Glossops' dwelling. The Johnsons' dwelling partially shades the Glossops' windows in mid-winter, but once the sun is higher, closer to the equinox, the bamboo would become the principal cause of sunlight obstruction to these windows, especially when the bamboo has not been pruned for some time. It seems to me that the obstruction would be severe.
Despite the recent reduction in the bamboo's height, orders might still be made to prevent the obstruction. This is similar to the situation found in Steber v Job [2019] NSWLEC 1308, where bamboo that was pruned prior to the hearing was found to severely obstruct a view. In the current proceedings, the bamboo grew to severely obstruct sunlight, and is likely to do so again in the near future. The respondents have been unwilling to prune the bamboo until receiving a copy of the Court application. The sunlight obstruction is an ongoing issue. Because I find that the bamboo severely obstructs sunlight to the applicants' windows, orders can be made to remedy and prevent the obstruction.

Consideration of relevant matters

I have considered the matters at s 14F of the Trees Act and discuss the relevant matters below.
The bamboo grows on the respondents' property, adjacent to the common boundary and close to the applicants' dwelling. It was planted and grew to obstruct sunlight during the period that the applicants have owned their dwelling. Consent would not be required under any legislation to remove the bamboo.
The bamboo contributes to amenity and privacy on the respondents' property. They planted it to provide a visual screen from the applicants' dwelling, which they say is rented during holiday periods. The applicants argued that the respondents had an opportunity to design their dwelling with privacy in mind, so their need for a hedge results from their poor planning. The applicants submitted that the respondents could provide screening on their own dwelling, rather than relying on a tall boundary hedge that shades the applicants.
Bamboo regrows quickly. Its long-term viability would not be impacted by pruning.
The applicants raised the issue of overflowing water from the respondents' tank. That issue is not relevant to this decision.
The affected windows might not be to living rooms, but the sunlight obstruction caused by the bamboo is sufficient to affect the enjoyment of people using those rooms during the day, as they might be expected to do.
The applicants have taken steps to gain some remedy to the issue. Until receiving the Court application, the respondents took no action.
The bamboo is likely to require frequent pruning to prevent further sunlight obstruction. It would be an onerous task. The dispute between the parties is unlikely to be completely resolved by orders for pruning, given the respondents' reluctance to take action until recently. If I were to order pruning, it would be to fence height or a little higher to minimise the likelihood of further obstruction and an ongoing dispute. This would provide little privacy benefit to the respondents. Removing the bamboo would avoid the need for pruning, and allow the respondents to plant their garden with species that are more easily maintained and less likely to result in further disputes with their neighbours.

Conclusions

The Johnsons' bamboo has grown to severely obstruct sunlight to windows of the Glossops' dwelling. Despite the recent pruning, the situation is likely to continue. Having considered the benefits of the bamboo, including the privacy it affords the respondents, along with its shading impacts to the applicants, I find it is appropriate to make orders to remedy and prevent sunlight obstruction.
For reasons outlined above, I am of the view that removing the bamboo is to be preferred to orders for ongoing pruning. To avoid the situation recurring, I will also make an order to restrict the height of any other hedge planted along this boundary.

Orders

As a result of the foregoing, the Court orders: 1. The application is granted. 2. Within 60 days of the date of these orders, the respondents are to remove all bamboo along their southern side boundary. 3. The respondents are to take all reasonable action required to prevent the bamboo regrowing. 4. If the respondents establish any hedges along their southern boundary in future, they are to use species that grow to a height of no more than 3 metres at maturity. 5. The exhibits are returned except for A.

Amendments 30 December 2020 - Jurisdiction on cover sheet corrected from "Class 1" to "Class 2". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 December 2020

At a glance

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Judgment (11 paragraphs)

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