Hoffmann v Goff

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) high hedges —¬¬ severe obstruction of view from a dwelling — privacy important to respondent — orders provide a balance between both parties’ preferences

Legislation Cited: Interpretation Act 1987 (NSW), s 34
Trees (Disputes Between Neighbours) Act 2006, ss 10, 14A, 14B, 14C, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, reg 4
Uniform Civil Procedures Rules, 2005

Cases Cited: Ball v Bahramali [2010] NSWLEC 1334
Dempsey v Cignetti [2023] NSWLEC 1224
Haindl v Daisch [2011] NSWLEC 1145
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Steber v Job [2019] NSWLEC 1308
Tooth v McCombie [2011] NSWLEC 1004
Wein v Reeves [2022] NSWLEC 1019
Yeates v Goff [2011] NSWLEC 1338

Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Department of Justice and Attorney General, November 2009
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, July 2016

Category: Principal judgment

Parties: Catherine Hoffmann (Applicant)
Marilyn Anna Goff (Respondent)

Representation: C Hoffmann (Self-represented) (Applicant)
M Goff (Self-represented) (Respondent)

File Number(s): 2024/367700

Publication restriction: Nil

JUDGMENT

Background

1. Catherine Hoffmann, the applicant, and Marilyn Anna Goff, the respondent, own and occupy properties in North Curl Curl, which share a side boundary. The common boundary extended from approximately west to east between the parties’ driveways, which met the street at the end of a cul-de-sac. Both properties were located on a hill that ascended from the west and rose up further towards the north. The respondent owned and occupied the upper level of a two-storey duplex dwelling while the applicant owned and occupied a three-storey detached dwelling, located higher up the slope towards the north.

2. Both parties enjoyed commanding water and district views across a broad arc from east south-east through south around to west north-west. Towards the south-east and south were views of the Tasman Sea, Freshwater/ Harbord Headland, and Curl Curl beach. The distinctive landform, bushland, and historic buildings of Manly and North Head were conspicuous in the mid-distant view to the south. The south-western foreground contained Curl Curl lagoon while more distant views in the arc from south-west to west featured a patchwork of urban dwellings and extensive bushland around Brookvale and the ridgeline of Allambie Heights.

3. Ms Hoffmann particularly valued the proximal ocean, headland, beach, and lagoon views between the south-east and south-west which the Goff’s gained over an adjacent reserve. However, the respondent’s dwelling and vegetation partially obstructed the applicant’s southern outlook, notwithstanding that the Hoffmann’s gained extensive views over the top of the Goff’s roof.

4. Mr and Mrs Goff purchased their property in 1993. By around 2000, the Goff’s had subdivided the land and replaced a cottage with a two-storey dual occupancy development. Though a Landscape plan accompanying the development showed four metre (m) Pittosporum trees in garden beds along the western section of the common boundary, the respondent planted a row of Fig trees (Ficus benjamina).

5. Along the eastern end of the common boundary, rather than Nandina domestica and vines on lattices as indicated on the Landscape plan, the Goff’s planted Castelloni bamboo, which was a declared Noxious Weed that required removal. Mr Goff subsequently gained approval from Warringah Shire Council (Council) to use Giant timber bamboo (Bambusa oldhamii) instead, notwithstanding that, in June 2004, Council recommended Mr Goff maintain the bamboo “at an appropriate height so as to not obstruct district views from neighbouring properties …” to avoid “… further conflict”.

6. Soon after purchasing the neighbouring property in 2012, the Hoffmann’s lodged a development application (DA) for their dwelling, which included a 3rd storey addition and a raised floor and extended balconies on the 2nd storey. The DA was granted in 2014, and construction was completed in 2015.

7. According to a Chronology at Appendix 12 of ‘Respondent Response to Tree Dispute Application and Evidence’ (Exhibit 1), between 2016 and about 2020, the parties established a workable balance between views for the applicant and privacy for the respondent through annual pruning of the bamboo and fig trees at the approximate height of the Hoffmann’s 2nd storey deck handrail.

8. The Goff’s pruned the height of the bamboo and figs each April or May prior to travelling to Canada until about September or October. Following pruning at this time, one may expect the bamboo and figs to be fairly dormant through winter and early spring. However, Ms Hoffmann alleged that by around November, after spring growth, the bamboo and figs caused severe view obstruction which worsened during summer, when the view was especially valued.

9. Due to rapid regrowth, Ms Hoffmann considered annual pruning insufficient and wanted the vegetation, especially the bamboo, pruned three or more times per year. However, Ms Hoffmann resisted people transiting her dwelling to undertake the pruning from her deck and preferred the pruning was completed from the respondent’s land.

10. In response to Question 13 in the Tree Dispute Claim Details (Exhibit B), regarding steps to prevent or rectify the view obstruction, Ms Hoffmann noted, “[o]ut of frustration we have spasmodically trimmed the hedges to rail height outside of the April/ May date”.

11. Consequently, from around 2020, the parties’ relationship and pruning arrangement progressively deteriorated. The Goff’s were indignant that the Hoffmann’s were pruning the bamboo without permission, and alleged it was being damaged. Ms Hoffmann claimed the pruning was “at our cost” and involved “repeated negotiations and with numerous conditions”. Mr Goff claimed conditions he placed on supervising all pruning were due to erosion of trust from the Hoffmann’s trespassing, and the alleged bamboo damage. Mr Goff contended the pruning costs were shared until about 2022/23 and emails between the parties showed this was the case for the pruning in 2021.

12. Though the parties continued to communicate by email and seek common ground, they failed to forge a viable solution. Consequently, Ms Hoffmann submitted an application to the Land and Environment Court (the Court), pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). To remedy alleged severe obstruction of views from her dwelling, Ms Hoffmann proposed the following (summarised) orders:

“1. The respondent, at her expense, shall maintain the bamboo hedge at a height 50 centimetres below the handrail of the applicant’s 2nd floor deck.

2. The respondent, at her expense, shall maintain the Fig trees at a height 1 metre below the handrail of the applicant’s 2nd floor deck and shall maintain the Fig trees so they do not encroach over the common side boundary, or

3. remove the fig trees.”

Jurisdictional requirements

13. The application is made under Pt 2A of the Trees Act, which provides a limited jurisdiction and does not assume one should have a right to sunlight or views. The Court cannot make orders under Pt 2A unless it is satisfied that the trees are causing a severe obstruction of sunlight to a window of a dwelling, or of views from the applicant’s dwelling. 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.

14. Section 14A(1) states:

14A Application of Part

(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).

15. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) 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.

16. Section 14C(1) stipulates requirements for notice of application for order to be given to owners of affected land, as follows:

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

17. 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)).

18. Section 14E addresses matters of which Court must be satisfied before making an order, as follows:

(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.

19. Section 14E(2) is particularly significant. Section 14E(2) 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.

20. If the Court is satisfied an obstruction is severe, at s 14E(2)(a), it must consider s 14E(2)(b); this in turn requires consideration of the following 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 Trees Act.

21. Section 14F: Matters to be considered by the Court

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction

(o) 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,

(p) 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,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

(s) such other matters as the Court considers relevant in the circumstances of the case.

The onsite hearing and evidence

22. The hearing occurred onsite with both parties self-represented. Ms Hoffmann was accompanied by her husband, Mr Hoffmann, and Ms Jacki Brown, an Expert Arborist, who provided an Arboricultural & Landscape Assessment (the report). The report was initially dated December 2021, updated in February 2022, and revised and finalised in October 2024. Ms Brown acknowledged having read and agreeing to be bound by the Expert Witness Code of Conduct (NSW Uniform Civil Procedures Rules, 2005).

23. On the respondent’s Notice of Appearance dated 11 November 2024, Mr Dennis Loether, of Bartier Perry Lawyers, had been listed to represent Ms Goff at the onsite hearing. However, on 28 January 2025, Ms Goff lodged a Notice of Removal of Solicitor and was self-represented instead. Ms Goff was accompanied by her husband, Mr Goff.

24. In online communication on 28 January 2025, Mr Griffiths of Bartier Perry Lawyers, requested leave be granted to Bartier Perry Lawyers to file and serve a notice of ceasing to act for Ms Goff. Deputy Registrar Chang declined to make orders as the request lacked consent of the applicant and directed me to address the request at the hearing. Mr Griffiths informed Ms Hoffmann of the intent to make this request on 28 January 2025. Therefore, such leave is granted.

25. In an email to the Court and copied to Ms Goff’s Lawyer, Ms Hoffmann advised, “[t]he Goff’s have trimmed the bamboo hedge at 9am today, 24 January, to a height that allows a view” and “[t]his is 6 days before the onsite hearing”. I received the email on 28 January 2025. I didn’t reply but acknowledged receipt of the email at the hearing.

26. The fig trees and bamboo were initially inspected from the respondent’s driveway, which ascended steeply beside the figs at the western end of the common boundary then levelled out across a broader paved apron between the bamboo and the entrance to the Goff’s dwelling. The figs and bamboo were contained in brick garden beds about 1m wide x 0.5m high along the common boundary.

27. The original planting pattern of the bamboo was no longer evident. Rather, it had melded over about 20 years into a dense uninterrupted screen along the eastern end of the common boundary. At p 4, the report noted that 12 of the 97 bamboo culms (canes) were dead. Nonetheless, I agreed with Ms Brown that the bamboo was in “good to average health and condition”. Occasional death of canes is normal and not unexpected, especially given that the bamboo was exposed to salt laden winds and had been growing with restricted soil volume for many years.

28. The Court moved to the applicant’s property for assessment of views and oral submissions. Three viewing locations (V1-V3) were nominated on the dwelling’s second floor, which was open plan with informal living and dining areas at the southern end and the kitchen at the northern end. Other than a long central dining table which extended from east to west, the large room was sparsely furnished. The southern wall and the majority of the western wall comprised floor to ceiling glass windows and doors.

29. V1 faced south from the eastern side of the room, V2 faced south and southwest from within the dwelling near the west side doors and V3 spanned the arc from south to west from a large balcony on the western side of the dwelling. In Exhibit B, Ms Hoffmann contended the bamboo was above 12m in height, but it had been pruned to about 6.5-7m tall, about 500mm below the handrail. Nonetheless, photos in the report showed much taller individual canes and various instances where the bulk of the bamboo was well above handrail height, particularly during autumn. The fig trees appeared to have been lightly pruned and their height was similar to the bamboo.

30. Ms Hoffmann had not included 3rd floor viewing locations in her Exhibit B site diagram and she resisted Mr Goff’s unsurprising request for assessment of the view from the 3rd floor addition. Such selective view access was not reasonable, however. As I noted in Wein v Reeves [2022] NSWLEC 1019; at [38]:

“… To assess the severity of obstruction of a view from a dwelling situated on the applicant's land requires consideration of all views available from a dwelling. Applicants sometimes omit windows with poor views from consideration in the interests of efficiency, but it is unreasonable, at best, for an applicant to expect to withdraw or ‘hide’ an area of a dwelling containing outstanding views, such that the severity of view obstruction in other areas of the dwelling may be deemed relatively greater. This is contrary to the procedure consistently applied by the Court under Part 2A, it compromises the intent of the jurisdiction, and taken to its extreme, would create absurd outcomes.”

31. The southern end of the 3rd floor contained the master bedroom on the western side and a children’s entertainment room on the eastern side. Both rooms had outstanding south facing ocean, beach, and landscape views through large glass windows and doors that opened onto a large balcony with uninterrupted panoramic views across about 210 degrees from east through south to northwest.

32. Ms Hoffmann contended DA consent conditions, which restricted shading and protection, significantly compromised comfortable usage of the balcony due to excessive heat or wind. Considering the available view, however, I was not persuaded the balcony would be unappealing other than on rare occasions. In most instances, hats would provide adequate protection. Though Ms Hoffmann similarly attempted to devalue the ocean, beach, and landscape views from the adjacent children’s entertainment room, it was a difficult argument to prosecute.

The applicant’s claim

33. Notwithstanding that the Goff’s had the trees pruned prior to the hearing, Ms Hoffmann claimed the bamboo severely obstructed ocean, beach, and district views from the dwelling’s 2nd floor from around each November to around May the following year, and that the fig trees severely obstructed the ‘iconic’ Curl Curl lagoon view.

34. In her proposed orders, Ms Hoffmann alleged the figs were “not suited to the location”, were “grossly out of proportion”, and “plantings consistent with the original Landscape plan” would be better for neighbourly relations and the environment.

35. Ms Hoffmann submitted that the prior owners of her property had similarly applied under Pt 2A of the Trees Act to remedy severe obstruction of views from the dwelling by the current respondent’s trees, especially the bamboo. The judgement is recorded in Yeates v Goff [2011] NSWLEC 1338 (Yeates). Though the parties in Yeates proposed orders by consent, the application was dismissed by Commissioner Fakes, primarily because the bamboo had been pruned before the hearing to mitigate the view obstruction.

36. As the Goff’s had again pruned the bamboo before the hearing to circumvent orders being made, Ms Hoffmann contended that the rationale in Steber v Job [2019] NSWLEC 1308 (Steber) should be applied to remedy the trees severely obstructing her ‘iconic’ views for about 6 months of each year.

37. Ms Hoffmann wanted the Goff’s to prune the bamboo from their property at their cost, three or more times per year to maintain the bamboo hedge at a height 50 centimetres below the handrail of the applicant’s 2nd floor deck; in April-May, around November-December, and January-February, or perhaps April, September/October, December, and February. Ms Hoffmann also wanted the fig trees pruned and maintained 1m below the handrail height.

The respondent’s submission

38. To the contrary, the respondent claimed the application “had no merit” and should be dismissed, just as Yeates had been dismissed, because the hedges were not causing severe obstruction of views and the Hoffman’s now had additional views from their 3rd storey. The respondent referred to photographs in Exhibit 1, Appendix 11, showing the bamboo and fig trees at the approximate height of the applicant’s handrail in 2011 and 2012, around the time of the Hoffman’s occupation. The respondent disputed the applicant’s claim that views of Curl Curl lagoon and Freshwater headland were ‘iconic’.

39. The Goff’s contended that the applicant had not provided 21 days’ notice of the application, as required at s 14C, nor made any reasonable effort to reach agreement in accordance with s 14E(1)(a) of the Trees Act. Letters in Exhibit 1, Appendix 6 from three bamboo experts were referenced, which the respondent summarised and synthesised into advice that bamboo is best managed with annual pruning in autumn/ winter and new canes should not be pruned until they extend and develop two top leaves.

40. The Goff’s claimed the report was “biased, flawed and inaccurate” and was “written for the benefit of the Applicant”. Firstly, the Goff’s disputed the report’s claim that the bamboo could be pruned with impunity without likelihood of damage and contended there were 25-30 dead bamboo stems resulting from the Hoffman’s “malicious” pruning.

41. However, the Goff’s primary aspersion about report bias appeared to be based on the recommendation to prune the fig hedge to 1-2m lower than its present height. The respondent offered opinions garnered from two arborists that such pruning would damage the hedge and claimed that previous heavy pruning of the figs’ foliage had resulted in branch dieback.

42. As an aside, the Goff’s contended the applicant persistently refused access to the Hoffmann’s property that was allegedly required for painting and maintenance of a brick and timber fence near the boundary.

43. The respondent contended the bamboo and fig trees provided privacy, protection from sun and noise, amenity for grandchildren playing in the Goff’s northern courtyard, and a sense of separation between the properties.

44. The Goff’s alleged that an agreement had been made for contractors employed by the Hoffmann’s to prune the hedge from the Hoffmann’s deck in April 2024 but upon the Goff’s return from overseas in late September 2024, no such pruning had not been undertaken. The Hoffmann’s were allegedly unwilling to provide an explanation, then served the tree dispute application in mid-October. The Goff’s inferred the absence of pruning was planned to ensure the bamboo grew to severely obstruct the Hoffmann’s view.

45. Within days of being served the application, Mr Goff employed contractors using a cherry picker from his property to prune the height of the bamboo and figs trees.

46. At Exhibit 1, Appendix 6: In addition to pruning the bamboo to the height of the deck handrail in April/ May, “when growth has finished and bamboo shoots have grown two top leaves”, the Goff’s proposed, “interim trimming in mid-December and mid-February each year to height of handrail of Hoffmann deck with access to the Hoffmann deck to carry out work”. “The landscape contractor shall be pre-arranged and paid by respondent.”

Findings

Do the trees form a hedge?

47. The first test at s 14A(1) is whether the trees are a hedge for the purpose of the Trees Act.

48. Pursuant to reg 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purpose of the Trees Act. There were about 100 bamboo stems with a height of about 7m. They had been planted in a linear configuration to form a privacy screen and currently performed that role. There were more than two fig trees with a height of about 6-7m. They had been planted in a row with similar intent to the bamboo and had the appearance and purpose of a hedge. Consequently, s 14A(1) of the Trees Act is engaged.

49. Ms Hoffmann is an owner of her property and Ms Goff’s property is situated on adjoining land. Therefore, s 14B of the Trees Act is engaged.

50. Ms Goff contended that s 14C(1)(a) of the Trees Act was not satisfied as the applicant served the Tree Dispute Application containing proposed orders on her at 6pm on 12 October 2024 without prior notice and had lodged the Tree Dispute Application on 4 October 2024. Ms Goff claimed Ms Hoffmann had thus failed to provide her with, “at least 21 days notice of the lodging of the application and the terms of any order sought”.

51. When considering a similar claim in Ball v Bahramali [2010] NSWLEC 1334, Commissioner Fakes explained that the 21-day period related to notice of an application having been made, not of an intention to lodge an application. At [38], the Commissioner said:

“38 With respect to Mr Gerathy’s contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1).”

52. In this case, the application was filed with the Court on 4 October 2024. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 22 October 2024. The matter was listed for a preliminary hearing on 12 November 2024. This information is recorded in the application; this was copied and made available to the applicant. Consequently, there was 21 days notice specified by the Court for the serving of documents and the preliminary hearing. Therefore, s 14C of the Trees Act is satisfied.

Did the applicant make a reasonable effort to reach agreement?

53. Section 14E(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. In Exhibit 1, Appendix 1, p 2, the Goff’s claimed that the Hoffmann’s repeated cutting of the bamboo without permission (and alleged damage to the bamboo), in spite of multiple written requests from the Goff’s and their Solicitors to cease such pruning, constituted a failure to make a reasonable effort to reach agreement. The Goff’s also alleged that s 14E(1)(a) was not satisfied as Ms Hoffmann had made no effort to compromise.

54. Section 14E(1)(a) of Pt 2A of the Trees Act contains the same requirement as s 10(1)(a) of Pt 2. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), an appeal under Pt 2, Preston CJ provided guidance about the ‘reasonable effort’ required to reach agreement; at [191]-[192]:

“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.”

55. Therefore, the requirement at s 14E(1)(a) to make “a reasonable effort to reach agreement” does not prescribe the conduct of an applicant or how an applicant negotiates. Nor does it necessarily require either party to compromise.

56. Further, at [195] of Robson, 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.”

57. While the conduct of both parties was perhaps unbecoming, regrettably this is not uncommon when ‘million-dollar views’ are at stake. Nonetheless, the evidence before the Court included ongoing correspondence in pursuit of common ground and resolution between the parties over many years. Regardless of animosity between the parties, I am therefore satisfied the applicant made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 14E(1)(a) of the Trees Act is engaged.

58. As Ms Hoffmann had also given notice of the application in accordance with s 14C, s 14E(1)(b) of the Trees Act is also satisfied.

59. The next step is to assess the severity of obstruction of a view from the applicant’s dwelling as a consequence of any or all of the trees in the hedge.

Is the obstruction of a view severe?

60. In Yeates, Commissioner Fakes relied on the rationale established in Tooth v McCombie [2011] NSWLEC 1004; at [14]-[15], in determining that the grammatical use of the present progressive ‘are obstructing’ at the commencement of s 14E(2)(a)(ii) required the severity of the view obstruction to be based on the condition of the hedge at the final hearing, regardless of whether the hedge had been pruned not long prior.

61. When contemplating similar circumstances in Steber in 2019, Galwey AC, a highly experienced arborist and Commissioner, established an alternative interpretation that promotes the underlying purpose of the Trees Act (see Steber; at [34]-[40]). The essence of Steber’s alternative rationale is at [41]-[45]:

“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.”

62. Although I was persuaded by the Goff’s claim that the Hoffmann’s withheld pruning of the bamboo after April 2024 to create a view obstruction of maximum severity and to provide evidence for their subsequent application to the Court, the photographs in the report of tall bamboo in 2024 are a mere subset of the applicant’s photographic evidence of persistent view obstruction.

63. I also acknowledge the Goff’s contention that the absence of date stamps on the photographs compromised the veracity of this evidence. I am satisfied, however, that the photograph of a wall of bamboo almost up to the dwelling’s south end barge board, in the report at p 20, is likely to be from 2014 as the glass fence and railing in the photograph predated the renovation. Given my familiarity with the characteristics and growth rate of Bambusa oldhamii and the fig trees, I am satisfied that many of the report’s other photographs of view obstruction, especially by the bamboo, probably reflect the situation across intervening years, as claimed by Ms Hoffmann.

64. Consequently, applying the rationale established in Steber, I am satisfied that the view from the 2nd floor of the applicant’s dwelling is severely obstructed by the bamboo, and to a lesser extent by the fig trees. I am also satisfied that the situation is likely to recur. Therefore, s 14E(2)(a) of the Trees Act is engaged.

Balancing the obstruction against the benefits of the trees

65. Before making any orders, the Court must be satisfied that Ms Hoffmann’s interest in restoring her views outweighs reasons for avoiding interference with the trees (s 14E(2)(b)). The matters to be considered in the balance are set out at s 14F of the Trees Act.

Consideration of relevant matters (s 14F)

66. The bamboo and figs are planted on the respondent’s land in a row close to the common boundary (s 14F(a)).

67. The bamboo was planted around 2004 and the figs around 1997-2000, long before the dwelling, the subject of the application, was constructed. The dwelling, the subject of the application, effectively is a new dwelling that resulted from the applicant’s major renovation and third floor addition in 2015 (s 14F(b)).

68. The bamboo and figs grew to a height of more than 2.5 metres before the applicant purchased and occupied her property in 2012. The respondent’s photographs in Exhibit 1, Appendix 11 showed the bamboo and figs approximately at the height of the Hoffman’s 2nd floor balcony handrail upon the Hoffman’s occupation. Trees at handrail height provided the applicant with substantial views but with obstruction of lower foreground views, particularly from the kitchen and other areas at the northern end of the room. The view obstruction became severe intermittently while the Hoffman’s have lived there. The 2nd floor balcony handrail was used as the guide for the height of pruning in almost all correspondence prior to about 2022, after which the applicant sought lower heights, as referenced in the report (s 14F(c)).

69. Ms Goff would not require a Council permit to prune the trees (s 14F(d)).

70. Although the bamboo had been approved by Council in 2004, in 2016 the applicant raised a complaint with Council about the inconsistency of the bamboo and fig trees with the original Landscape plan for the duplex development. Exhibit 1 included a 2016 letter from the respondent’s Solicitor to Council which resolved the issue, and no landscape alteration was required by the respondent (s 14F(e)).

71. Due to their elevated location and prominence, the fig trees contributed to the scenic value of the land on which they are situated and the immediate locality, and added intrinsic value to public amenity. Contrary to the applicant’s contentions, the fig trees make significant environmental contributions (ss 14F(h) and (i)).

72. Section 14F(k) required consideration of the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees. The respondent’s ‘best practice’ pruning recommendation, synthesised from three bamboo experts, was annual pruning in autumn/ winter and not pruning new canes until they extended and developed two top leaves.

73. Given the context of the bamboos’ location directly in front of the Hoffman’s primary view, however, and the annually repeated visible evidence of the insufficiency of this ‘best practice’ pruning regime for maintaining a reasonable view for the applicant, prioritisation of ‘best practice’ pruning, apparently with scant regard for the applicant’s view obstruction, was disingenuous, at best.

74. Provided the bamboo receives appropriate and sufficient water and fertilizer, it can be pruned more regularly without negative impact. More frequent pruning was clearly required to maintain the Hoffman’s view free of obstruction. As suggested in the report, more frequent pruning would probably also result in denser foliage that would improve the Goff’s privacy.

75. The report provided sound and extensive consideration of the bamboo’s growth characteristics and management options. The bamboo is much more resilient than the Goff’s claimed, and even if marginally more stems died from non-optimal pruning practices, this was unlikely to seriously impact the bamboos’ overall health or viability. Ongoing stem death is normal and, as noted amongst the pruning advice, dead stems may simply be removed near ground level for aesthetic purposes.

76. Conversely, however, the report’s recommendations for pruning the fig trees by 1-2m appeared cursory and poorly substantiated. This focused on the applicant’s desired view preference without adequately considering likely negative impacts on the fig trees arising from such pruning. Regrettably, this provided weight to the Goff’s claim of report bias.

77. Treatment of the Ficus hedge, at 6.4 on p 16 of the report, said “the following should be considered to reduce the view obstruction from the Ficus hedge”; “[p]rune the hedge to 1-2m lower than the present height to restore the view from (the applicant’s property)”. “Hedge pruning should be done by a qualified horticulturist, taking care not to cut branches to the stem or beyond the point where the foliage is likely to die back”.

78. However, at 4.8 on p 12, the report said the health of the Ficus hedge, “… was average, with somewhat yellow foliage compared to the normal growth of the species”. “This may be due to the confined volume of soil available in the raised garden beside the driveway”. “Some portions of dieback are visible within the hedge”. “Depending on the extent of pruning, the hedge might look bare in the interim before new foliage emerges, and there is the possibility of some areas not growing back if too many branches are removed. However, a moderate amount of pruning would not harm the trees/ plants”.

79. Based on the arboricultural expertise I bring to the Court, there are distinct contradictions between the diagnosis and prognosis of tree health at 4.8, and the recommendations at 6.4. It is reasonable for an expert arborist to conclude that the “yellow foliage” and “visible dieback” were probable symptoms of tree stress, and the “restricted soil volume” and “salt conditions near the coast” (noted at 4.2 of the report) were causes of stress that were inhospitable for fig regrowth. In this context, I am not satisfied that pruning the hedge height by 1-2m (at 6.4) may be reasonably equated to “moderate” pruning (at 4.8). I do not agree that the fig trees’ height may be reduced by 1-2m while simultaneously “taking care not to cut branches to the stem or beyond the point where the foliage is likely to die back (at 6.4).” Considering the fig’s visible signs of tree stress, these outcomes were mutually exclusive.

80. As with many fig species, the thin bark of Ficus benjamina is prone to damage from sunburn. Thus, the persistently exposed stems resulting from such pruning were likely to suffer sunburn and decay. I would expect the recommended pruning to result in inconsistent and slow re-foliation, stem dieback, and long-term damage, regardless of whether the pruning is completed by a qualified horticulturist.

81. The bamboo and figs provided physical separation between the parties’ properties. They contributed to the Goff’s privacy in their northern courtyard from the impact of overviewing from the applicant’s dwelling, along with a psychological separation between the parties. Privacy is the most common concern of respondents in Pt 2A matters. The trees also provided shading and contributed to the amenity of the land on which they are situated by softening the impact of adjacent built structures (s 14F(l)).

82. To prevent or rectify the obstruction, Mr Goff had pruned the trees annually in April/ May. However, this had obviously been insufficient pruning to maintain the view free of obstruction. The Hoffman’s acknowledged “spasmodically” pruning the bamboo to clear the obstruction, and the associated trespass and alleged damage to the bamboo had been a source of significant conflict between the parties (s 14F(n)).

83. The trees are evergreen (s 14F(p)).

84. Section 14F(q) requires consideration of the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view. As Commissioner Fakes had in Yeates, it is relevant to consider the words ‘a view’ used in s 14 of the Trees Act, as discussed in Haindl v Daisch [2011] NSWLEC 1145 (Haindl*)*; at [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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis.”

85. Therefore, the applicant’s view is a single panoramic view with many components; the ocean, the beach, the headlands, the water/horizon interface, the land/water interface, the lagoon, and broad district views.

86. In Yeates; at [22], Commissioner Fakes also referenced Haindl; at [64], in considering the relative severity of views:

“64 It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view.”

87. In light of the above excerpts from Haindl, I concur with the Goff’s submission that Curl Curl lagoon is not ‘iconic’. Relative to the entire available view that includes the ocean, the beach, water/horizon interface, land/water interface, and North Head, the lagoon is not a crucial or key component, regardless that the applicant may covet every part of the view. Describing a view as ‘iconic’ does not necessarily confer some special status or extra value to a view. An ‘iconic’ view is a subjective concept and requires no further examination here.

88. The Hoffmann’s gained panoramic views from their 3rd storey addition and reasonable residual views through windows on the eastern side of the southern aspect of the 2nd storey living room, even when the trees were overgrown. Nonetheless, it was clear that the 2nd storey living room was the Hoffmann family’s primary space and that the bamboo, in particular, persistently severely obstructed the most desirable and valuable views from key locations in this room. Therefore, orders shall be made for pruning to mitigate such obstruction.

89. Having said this, it is an unreasonable expectation to prune the trees to provide all possible views from all possible locations at all times. In Yeates, Commissioner Fakes described being asked by the applicants to sit in certain positions on a couch or stand in a particular spot in a bathroom, for example, and find part of a desired view obstructed by the bamboo from that location to be severe, even though the available residual view included, for example, significant ocean or beach components. Similarly, much better views were available with a minor change of position. Instead, Commissioner Fakes applied Haindl; at [26], in finding the impact of obstruction by the trees from such specific locations to be minor “when the full extent of the view is considered” (see Yeates; at [27]). I have adopted the same rationale when considering the applicant’s discrete claims regarding obstruction of views from the kitchen or other locations at the northern end of the living room, given that excellent views are available from the middle or southern end of the living room (s 14F(r)).

90. Section 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case. The extent of view obstruction caused by the bamboo and figs upon the Hoffman’s 2012 occupation is a critical consideration determining orders that the Court may make. The Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (the Review) recommended amendment of the Trees Act to add Pt 2A in order to remedy severe obstruction of sunlight to dwelling windows, and of views, by high hedges.

91. The Scope of Pt 2A of the Trees Act, discussed at p 34-36 of the Review, was limited to **“**the most clearly problematic cases”, “where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or views] which had not existed at the time of purchase” (see Dempsey v Cignetti [2023] NSWLEC 1224; at [34]). This explicit component of the scope of Pt 2A has been consistently applied in all relevant cases.

92. My recourse to the Review relies on the jurisdiction of s 34 of the Interpretation Act 1987 (NSW), which provides detail regarding when, why and how extrinsic material might be used to shed light on the meaning of a provision in an Act.

Conclusion

93. I am satisfied the respondent’s hedges have caused a severe obstruction of the applicant’s view. The severe view obstruction was a direct result of the Goff’s planting the trees but persistently failing to prune them sufficiently regularly and or at an appropriate height, to accommodate their rapid growth rate. This especially applied to the bamboo.

94. Consequently, the bamboo shall be pruned by the respondent or a contractor employed by the respondent, at the respondent’s expense, three times per year as proposed by both parties; in April/ May, in mid-December and mid-February each year. The height of the bamboo pruning shall be approximately 300mm below the height of the applicant’s deck handrail. i.e. around the height to which the bamboo had been pruned on 24 January 2025, prior to the hearing.

95. This height strikes a reasonable cadence and cascade between periods soon after pruning when the applicant may gain views below handrail height and periods just prior to subsequent pruning where regrowth may have extended above handrail height. While orders for maintenance of the bamboo below handrail height ‘at all times’ are simply not practical, this pruning regime should provide for the average bamboo height to be around or marginally lower than the handrail, with a bit of reasonable give and take. However, the orders imply an expectation that the applicant will subsequently refrain from pruning the bamboo.

96. As noted above; at [90], the scope of Pt 2A explicitly precludes an applicant seeking “orders against their neighbours so as to gain additional solar access [or views] which had not existed at the time of purchase”. The fig tree height shall be retained approximately at the level of the handrail as this was their relative height upon the applicant’s occupation, notwithstanding that the handrail height is about 630mm higher than the original dwelling.

97. Even if the pruning was not precluded by the extent of the obstruction by the hedges at the applicant’s occupation, the applicant’s proposed order 2 for pruning fig tree height by 1m would not be made due to the likelihood of resultant sunburn damage, branch dieback, and long-term negative impact. There is no imperative for the Court to make orders for pruning at a height proposed by an applicant. Many past cases include orders for pruning that accommodate the requirement for trees to continue to grow in order to optimise health.

98. The Hoffman’s shall provide access to their deck and front yard for the pruning works and the removal and tidying of debris. Considering the stark difference in convenience and cost between pruning from the respondent’s land relative to pruning from the applicant’s deck, it is not reasonable to deny access to the deck. Such access is a standard inclusion of orders under the Trees Act, but it is contingent on the contractors and Mr Goff exercising due care on the applicant’s property.

99. Amongst many letters and emails between the parties over many years, Mr Hoffmann noted that both parties’ interests would be served by more regular bamboo pruning and the cessation of his pruning. The orders provide for such an outcome but also require acceptance that views of Curl Curl lagoon cannot be available from all desired vantages without the likelihood of long-term fig tree damage and that the fig trees provide significant benefits for the respondent and the environment. Further, most of the applicant’s desired views will be secured, and excellent views of Curl Curl lagoon remain readily available from the 3rd storey. At the same time, the respondent retains important privacy. This is the balance that the Trees Act endeavours to strike.

100. The orders will also not provide the reduction in fig width desired by the applicant as required pruning would also be excessive as it would probably cause long term damage. Hopefully, the applicant can also accommodate the respondent’s request for twice yearly access for fence maintenance, perhaps in conjunction with pruning visits, as part of a new path forward.

Orders

101. The orders of the Court are:

102. The respondent shall engage and pay contractors with all appropriate insurances (the contractors), and or Mr Goff, to prune the height of the respondent’s bamboo located along the common boundary, to approximately 300mm below the height of the applicant’s deck handrail in late April-early May each year, in mid-December each year, and in mid-February each year, commencing in May 2025.

103. The respondent shall engage and pay the contractors, and or Mr Goff, to prune the height of the respondent’s fig trees located along the common boundary to approximately 100mm below the height of the applicant’s deck handrail in late April-early May each year, commencing in May 2025, and to prune the northern side of the fig trees by up to 200mm, but only to the extent that a cover of foliage is retained.

104. The applicant shall provide all required access for undertaking the pruning works or for clearing debris, including access via the applicant’s dwelling to the 2nd floor deck adjacent to the trees, upon receipt of 7 days notice from the respondent by email.

105. The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

106. All pruning works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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