Guthrie v Heron

Land and Environment Court (NSW)|2023-11-20

Background

COMMISSIONER: Pauline Guthrie (the applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders relating to trees on a neighbouring Fennell Bay property belonging to Carolyn Heron (the respondent).
Ms Guthrie and Ms Heron share a common boundary that runs east-west. On Ms Heron's property, in a narrow garden bed along this boundary, she has hedges of bamboo and two lilly pilly trees. Ms Guthrie submitted that all of this vegetation affects her access to sunlight and views.
Ms Guthrie filed her original application on 7 July 2023, seeking orders to remedy a severe obstruction of sunlight and views by eradicating the neighbouring bamboo. She then filed an amended application on 6 August 2023, seeking orders for the bamboo and the two lilly pillies to be pruned to 2.5 metres. At the onsite hearing, Ms Guthrie clarified that she seeks orders as per her original application: eradication of the bamboo.
In her application, Ms Guthrie described all of the bamboo along the boundary as one hedge. Ms Heron considers the bamboo to form three separate hedges: the main section of bamboo between the two dwellings, in the western half of the common boundary (Hedge 1); the central section of bamboo between the lilly pillies and her side gate (Hedge 2); and the separate section toward the street frontage at the eastern end of the common boundary (Hedge 3).
The hearing took place onsite, allowing the Court to inspect the trees, the trees' impacts on views and sunlight, and privacy and overlooking issues at both properties. Ms Heron tendered a report from Lance Doyle, a planner, who also gave evidence at the hearing.

Reasonable effort to reach agreement

Ms Heron disputes that Ms Guthrie made a reasonable effort to reach agreement. There were some short discussions between the parties, but Ms Heron submitted that these were at inappropriate times.
On 19 June 2023, Ms Heron received a letter from Ms Guthrie dated 13 June. The letter raised Ms Guthrie's concerns regarding the bamboo's impacts on her sunlight and views. Ms Heron pruned bamboo in Hedge 1 on 5 July and wrote back to Ms Guthrie on 6 July. Ms Guthrie filed her application on 7 July. Ms Heron argued that this denied her any further opportunity to address Ms Guthrie's concerns. Ms Guthrie submitted that she felt she would not get the outcome she wanted by negotiating - she wanted, and still wants, the bamboo eradicated, not pruned. On the evidence before me, I am satisfied that Ms Guthrie made a reasonable effort to reach agreement with Ms Heron.

The trees

The bamboo in all three hedges is slender weaver's bamboo (Bambusa textilis var. gracilis). Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. The three bamboo hedges grew to be more than 4 metres tall, possibly up to 6 metres tall. Ms Heron planted the bamboo as a privacy hedge. Therefore, Pt 2A of the Trees Act applies to the bamboo (s 14A of the Trees Act).
Ms Heron had the bamboo pruned to around 2.4 metres in height - Hedge 1 was pruned on 5 July 2023 and Hedges 2 and 3 were pruned on 18 July 2023. At the time of the hearing, the bamboo was mostly around 2.5 metres tall, with some parts a bit taller.

Obstruction of sunlight

At the time of the hearing, bamboo in Hedge 1 to the north of a bedroom window (W1 in the application) in Ms Guthrie's dwelling was around 2.5 metres tall. The bamboo would not severely obstruct sunlight to the window at this height. Ms Guthrie acknowledged this during the hearing.
Ms Guthrie submitted that bamboo in Hedge 1 did severely obstruct sunlight to the bedroom before it was pruned in early July. She submitted that bamboo grows vigorously and Hedge 1 will soon obstruct sunlight to her window again. Ms Heron acknowledged that Hedge 1 had a significant shading impact on the bedroom window.
In Steber v Job [2019] NSWLEC 1308 ("Steber"), the Court found that trees that rose to more than 2.5 metres in height, and were likely to do so again, may be considered to "rise to a height of at least 2.5 metres" (s 14A(1)(b) of the Trees Act), even if they were less than 2.5 metres tall on the day of the hearing. Similarly, the Court might be satisfied that trees that have severely obstructed sunlight or a view, and were likely to continue doing so, "are severely obstructing" sunlight or a view (s 14E(2)(a)), even if the obstruction was not severe at the time of the hearing. With this in mind, the absence of a severe sunlight obstruction on the day of the hearing might not prevent the Court making orders in these proceedings.
I accept Ms Guthrie's assertion that the bamboo in Hedge 1 severely obstructed sunlight to the bedroom window before it was pruned on 5 July 2023. Photographs included in her application demonstrate this. However, I cannot be satisfied that this is likely to be an ongoing state of affairs. Ms Heron directed her gardener to prune Hedge 1 to a height of approximately 2.4 metres within a few weeks of receiving Ms Guthrie's letter, before 7 July 2023, the date by which Ms Guthrie wanted a response, and before receiving a copy of Ms Guthrie's application to the Court. Ms Heron then directed her gardener to prune Hedges 2 and 3 on 18 July 2023, a week before she received a copy of Ms Guthrie's application. These actions do not demonstrate an unwillingness on her part to consider her neighbour's requests; rather, they suggest that Ms Heron has compromised in an effort to avoid an ongoing dispute with Ms Guthrie.
Ms Heron submitted that the bamboo is easily pruned by her gardener within her property. Her gardener has the necessary equipment and can prune all the bamboo in around 15 minutes. It is not an onerous task, unlike the situation in Steber, where the respondent found it difficult to find someone to prune her hedge. Ms Heron submitted that she thinks it is reasonable for her to maintain the bamboo.
Mr Doyle found that Hedge 1 did not obstruct sunlight to the window, but acknowledged it would compromise solar access if "…allowed uncontrolled growth". He recommended that Ms Heron maintain the hedge below a certain height, being approximately 1.4 metres above Ms Guthrie's floor level.
Because the sunlight obstruction caused by bamboo in Hedge 1 is unlikely to be continuous, I am not satisfied that Hedge 1 is causing a severe obstruction of sunlight to Ms Guthrie's window. No orders can be made on that element of her application.
Ms Guthrie's living room window (W2 in her application) at the front of her dwelling faces east. Bamboo in Hedges 2 and 3, to the northeast, can obstruct morning sunlight to this window during winter, and this was likely the case before these hedges were pruned on 18 July 2023. At the height observed during the hearing, bamboo in these two hedges did not severely obstruct sunlight to Ms Guthrie's living room window. In light of Ms Heron's submissions regarding her intentions to maintain the bamboo in all three hedges, the bamboo in Hedges 2 and 3 is unlikely to reach its earlier height again, so should not severely obstruct sunlight to the living room in future. For the same reason, I found that Hedge 1 does not severely obstruct sunlight to a window, I find that bamboo in Hedges 2 and 3 does not severely obstruct sunlight to a window. No orders can be made on this element of the application.

Obstruction of views

From the bedroom window (W1) Ms Guthrie has views of distant bushland to the east. A photograph within her application shows the view entirely obstructed by bamboo in Hedge 1 before it was pruned. At the time of the hearing, the bamboo did not obstruct the view.
Ms Heron acknowledged that her bamboo obstructed the view from Ms Guthrie's bedroom, but submitted that the bedroom is an ancillary room, the view is across a side boundary, and that the more expansive view from Ms Guthrie's rear patio is unaffected by the bamboo.
Mr Doyle described the view from W1 in his report (Exhibit 2) as an outlook containing no iconic features. He found the view was not severely obstructed.
I found earlier that the severe obstruction of sunlight to the bedroom window is unlikely to be ongoing. For the same reason, I find Hedge 1's obstruction of the view from the bedroom is unlikely to be ongoing. The Court cannot be satisfied that the view obstruction is severe, so no orders can be made on this element of the application.
Ms Guthrie has views from her living room of bushland to the northeast. Before being pruned in July 2023, bamboo in Hedges 2 and 3 obstructed parts of this view. At the time of the hearing, the extent of the bamboo's view obstruction was not severe.
Ms Heron submitted that the view obstruction caused by Hedges 2 and 3 was never severe. She pointed out that trees planted and maintained by Ms Guthrie in her own garden had obstructed the view significantly until pruned or removed recently.
Ms Heron has pruned these hedges and expressed a view that it is reasonable for her to maintain them. I am not satisfied that the view obstruction caused by Hedges 2 and 3 is severe, so no orders can be made on this element of the application.

Consideration of other matters

Both Ms Guthrie and Ms Heron raised other matters relevant to the hedges, sunlight and views. Ms Heron promoted the bamboo's benefits, including its contribution to privacy, amenity and habitat. Ms Heron submitted that there is a bird's nest within Hedge 1 and that frogs are seen within the hedges. Ms Guthrie highlighted the value of the views and the importance of light within her dwelling. I heard their submissions and considered them during the hearing. Because I have found that the bamboo does not severely obstruct sunlight to her windows or views from her dwelling, I cannot make any orders, so these are not matters I need to consider further.
Ideally, Ms Heron's ongoing maintenance of her bamboo hedges will prevent this dispute returning to Court. Should the situation change, Ms Guthrie can make a new application to the Court: see Hinde v Anderson [2009] NSWLEC 1148. The Court has, at s 14D of the Trees Act, a broad range of orders it may make to remedy, restrain or prevent the severe obstruction of sunlight or views caused by trees, including orders to remove trees to avoid an ongoing dispute: see West v Arico [2023] NSWLEC 1668 at [11]-[13].
Ms Heron values the habitat provided by the bamboo, including habitat provision for birds and frogs. To avoid adverse impacts to fauna, she only needs to wait for the bird's nest that she has identified to become inactive before pruning the bamboo.

Orders

The Court orders: 1. The application is refused. 2. The exhibits are returned, other than Exhibits A and B.

Acting Commissioner of the Court 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: 19 March 2024

(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.

Ms Heron disputes that Ms Guthrie made a reasonable effort to reach agreement. There were some short discussions between the parties, but Ms Heron submitted that these were at inappropriate times.
On 19 June 2023, Ms Heron received a letter from Ms Guthrie dated 13 June. The letter raised Ms Guthrie's concerns regarding the bamboo's impacts on her sunlight and views. Ms Heron pruned bamboo in Hedge 1 on 5 July and wrote back to Ms Guthrie on 6 July. Ms Guthrie filed her application on 7 July. Ms Heron argued that this denied her any further opportunity to address Ms Guthrie's concerns. Ms Guthrie submitted that she felt she would not get the outcome she wanted by negotiating - she wanted, and still wants, the bamboo eradicated, not pruned. On the evidence before me, I am satisfied that Ms Guthrie made a reasonable effort to reach agreement with Ms Heron.

The bamboo in all three hedges is slender weaver's bamboo (Bambusa textilis var. gracilis). Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. The three bamboo hedges grew to be more than 4 metres tall, possibly up to 6 metres tall. Ms Heron planted the bamboo as a privacy hedge. Therefore, Pt 2A of the Trees Act applies to the bamboo (s 14A of the Trees Act).
Ms Heron had the bamboo pruned to around 2.4 metres in height - Hedge 1 was pruned on 5 July 2023 and Hedges 2 and 3 were pruned on 18 July 2023. At the time of the hearing, the bamboo was mostly around 2.5 metres tall, with some parts a bit taller.

At the time of the hearing, bamboo in Hedge 1 to the north of a bedroom window (W1 in the application) in Ms Guthrie's dwelling was around 2.5 metres tall. The bamboo would not severely obstruct sunlight to the window at this height. Ms Guthrie acknowledged this during the hearing.
Ms Guthrie submitted that bamboo in Hedge 1 did severely obstruct sunlight to the bedroom before it was pruned in early July. She submitted that bamboo grows vigorously and Hedge 1 will soon obstruct sunlight to her window again. Ms Heron acknowledged that Hedge 1 had a significant shading impact on the bedroom window.
In Steber v Job [2019] NSWLEC 1308 ("Steber"), the Court found that trees that rose to more than 2.5 metres in height, and were likely to do so again, may be considered to "rise to a height of at least 2.5 metres" (s 14A(1)(b) of the Trees Act), even if they were less than 2.5 metres tall on the day of the hearing. Similarly, the Court might be satisfied that trees that have severely obstructed sunlight or a view, and were likely to continue doing so, "are severely obstructing" sunlight or a view (s 14E(2)(a)), even if the obstruction was not severe at the time of the hearing. With this in mind, the absence of a severe sunlight obstruction on the day of the hearing might not prevent the Court making orders in these proceedings.
I accept Ms Guthrie's assertion that the bamboo in Hedge 1 severely obstructed sunlight to the bedroom window before it was pruned on 5 July 2023. Photographs included in her application demonstrate this. However, I cannot be satisfied that this is likely to be an ongoing state of affairs. Ms Heron directed her gardener to prune Hedge 1 to a height of approximately 2.4 metres within a few weeks of receiving Ms Guthrie's letter, before 7 July 2023, the date by which Ms Guthrie wanted a response, and before receiving a copy of Ms Guthrie's application to the Court. Ms Heron then directed her gardener to prune Hedges 2 and 3 on 18 July 2023, a week before she received a copy of Ms Guthrie's application. These actions do not demonstrate an unwillingness on her part to consider her neighbour's requests; rather, they suggest that Ms Heron has compromised in an effort to avoid an ongoing dispute with Ms Guthrie.
Ms Heron submitted that the bamboo is easily pruned by her gardener within her property. Her gardener has the necessary equipment and can prune all the bamboo in around 15 minutes. It is not an onerous task, unlike the situation in Steber, where the respondent found it difficult to find someone to prune her hedge. Ms Heron submitted that she thinks it is reasonable for her to maintain the bamboo.
Mr Doyle found that Hedge 1 did not obstruct sunlight to the window, but acknowledged it would compromise solar access if "...allowed uncontrolled growth". He recommended that Ms Heron maintain the hedge below a certain height, being approximately 1.4 metres above Ms Guthrie's floor level.
Because the sunlight obstruction caused by bamboo in Hedge 1 is unlikely to be continuous, I am not satisfied that Hedge 1 is causing a severe obstruction of sunlight to Ms Guthrie's window. No orders can be made on that element of her application.
Ms Guthrie's living room window (W2 in her application) at the front of her dwelling faces east. Bamboo in Hedges 2 and 3, to the northeast, can obstruct morning sunlight to this window during winter, and this was likely the case before these hedges were pruned on 18 July 2023. At the height observed during the hearing, bamboo in these two hedges did not severely obstruct sunlight to Ms Guthrie's living room window. In light of Ms Heron's submissions regarding her intentions to maintain the bamboo in all three hedges, the bamboo in Hedges 2 and 3 is unlikely to reach its earlier height again, so should not severely obstruct sunlight to the living room in future. For the same reason, I found that Hedge 1 does not severely obstruct sunlight to a window, I find that bamboo in Hedges 2 and 3 does not severely obstruct sunlight to a window. No orders can be made on this element of the application.

From the bedroom window (W1) Ms Guthrie has views of distant bushland to the east. A photograph within her application shows the view entirely obstructed by bamboo in Hedge 1 before it was pruned. At the time of the hearing, the bamboo did not obstruct the view.
Ms Heron acknowledged that her bamboo obstructed the view from Ms Guthrie's bedroom, but submitted that the bedroom is an ancillary room, the view is across a side boundary, and that the more expansive view from Ms Guthrie's rear patio is unaffected by the bamboo.
Mr Doyle described the view from W1 in his report (Exhibit 2) as an outlook containing no iconic features. He found the view was not severely obstructed.
I found earlier that the severe obstruction of sunlight to the bedroom window is unlikely to be ongoing. For the same reason, I find Hedge 1's obstruction of the view from the bedroom is unlikely to be ongoing. The Court cannot be satisfied that the view obstruction is severe, so no orders can be made on this element of the application.
Ms Guthrie has views from her living room of bushland to the northeast. Before being pruned in July 2023, bamboo in Hedges 2 and 3 obstructed parts of this view. At the time of the hearing, the extent of the bamboo's view obstruction was not severe.
Ms Heron submitted that the view obstruction caused by Hedges 2 and 3 was never severe. She pointed out that trees planted and maintained by Ms Guthrie in her own garden had obstructed the view significantly until pruned or removed recently.
Ms Heron has pruned these hedges and expressed a view that it is reasonable for her to maintain them. I am not satisfied that the view obstruction caused by Hedges 2 and 3 is severe, so no orders can be made on this element of the application.

Both Ms Guthrie and Ms Heron raised other matters relevant to the hedges, sunlight and views. Ms Heron promoted the bamboo's benefits, including its contribution to privacy, amenity and habitat. Ms Heron submitted that there is a bird's nest within Hedge 1 and that frogs are seen within the hedges. Ms Guthrie highlighted the value of the views and the importance of light within her dwelling. I heard their submissions and considered them during the hearing. Because I have found that the bamboo does not severely obstruct sunlight to her windows or views from her dwelling, I cannot make any orders, so these are not matters I need to consider further.
Ideally, Ms Heron's ongoing maintenance of her bamboo hedges will prevent this dispute returning to Court. Should the situation change, Ms Guthrie can make a new application to the Court: see Hinde v Anderson [2009] NSWLEC 1148. The Court has, at s 14D of the Trees Act, a broad range of orders it may make to remedy, restrain or prevent the severe obstruction of sunlight or views caused by trees, including orders to remove trees to avoid an ongoing dispute: see West v Arico [2023] NSWLEC 1668 at [11]-[13].
Ms Heron values the habitat provided by the bamboo, including habitat provision for birds and frogs. To avoid adverse impacts to fauna, she only needs to wait for the bird's nest that she has identified to become inactive before pruning the bamboo.

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A and B.

(Disputes Between Neighbours) Act 2006

(Disputes Between Neighbours) Regulation 2019

At a glance

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Judgment (16 paragraphs)

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