Hough & anor v Rettenmaier & anor

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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

1 SENIOR COMMISSIONER: These proceedings are the first proceedings heard and determined by the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Part 2A came into effect from 2 August 2010 and permits the Court to deal with applications concerning high hedges that obscure sunlight or views.

2 There are a variety of jurisdictional prerequisites that the Court must consider and about which the Court must be satisfied prior to its jurisdiction being enlivened under Part 2A. We propose to step through each of those jurisdictional prerequisites and indicate how we are satisfied that they are met, in these proceedings, to the extent that they are so met. 3 The first provision that is relevant is that which arises under s 14A(1) of the Trees Act. It requires that four elements be satisfied. The first is that the plants that are involved are trees. In these proceedings, the plants that are involved forming the hedge that is the subject of the application are bamboo, which is a plant that in botanical terms is a grass. However, as a consequence of cl 4 of the Trees (Disputes Between Neighbours) Regulation 2007 bamboo is proscribed as being a tree for the purposes of the definition of "tree" in s 3(1) of the Trees Act. As a consequence we are satisfied that that element of s 3 is as satisfied.

4 During the course of the site inspection, this morning, we inquired of the respondents whether or not the clumps of bamboo that we observed at the rear of their property had been planted or had been as an extensive suckered screen derived from a single bamboo rhizome. We were advised that the bamboo had been planted in clumps. That satisfies two further of the elements contained in s 14A(1) namely, that there are two or more trees and, second, that they have been planted. There is no doubt from the photographs later in this decision that they have had the effect of forming a hedge across the rear of the respondents' property. 5 There is also, equally no doubt (on the basis of measurements taken by us this morning and provided to the parties, using a high pole) that the hedge exceeds more than 2.5 metres above existing ground level at the rear of the respondents' property. In passing, we note that existing ground level is at the point where the trees are planted in the ground and, in at least that regard, the difference in ground level between the applicants' property and the respondents' property is not of relevance in such a jurisdictional test. 6 On our measurements, we are satisfied that the height of the hedge, at least in part, is in excess of 8 m and appears to average significantly over 6 m across that portion of the rear respondents' property. The various tests that are set out in s 14A(1) are, therefore, on our view, satisfied. 7 We then inspected the applicants' property in order to consider matters that are contained in s 14B of the Trees Act. That requires us to assess, first, whether the hedge obstructs any view from a dwelling on the applicants' land and, second, with respect to each such view that is raised, to make an assessment as to whether or not that obstruction is severe. For those purposes we also incorporate two photographs that were taken during the course of the site inspection comprising photographs looking towards Port Hacking from the upper and lower balconies of the applicants' property. These photographs are reproduced below:

8 The applicant raised three views, each of which, they say, is obstructed and is the subject to a severe obstruction. We are satisfied that in considering those questions it is appropriate to adopt and apply the first three of the steps adopted by Roseth SC in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 commencing at para (26) of that decision. 9 Roseth SC, who was there dealing with view impact questions in a planning sense rather than in the statutory sense under the Trees Act, posed four questions, as appropriate, to be considered and a number of matters to which regard should be had as part of the consideration of each of those steps. The fourth of the steps, one which relates to development proposals is not relevant in our view, to applications under Part 2A of the Trees Act. 10 The first Tenacity step is to assess the views that are to be affected. In that case Roseth SC noted that water views are valued more highly than land views and he then went on to deal with other matters such as a water view in which the interface between land and water is visible being more valuable than one where it is obscured. 11 The Tenacity second step is to consider from what part of the property the views are obtained and Roseth SC indicated that protection of views across side boundaries is more difficult than the protection of views from front or rear boundaries. The questions of whether the view is viewed from a standing or sitting position may also be relevant and he observed that sitting views are more difficult to protect than standing views. He observed that the expectation to retain side and sitting views is often unrealistic. 12 We are of the view that although those sentiments were expressed in a planning context they are also relevant to our consideration in this matter (and in other matters such as this matter) under the Trees Act. 13 The third Tenacity step, posed by Roseth SC, is to ask to assess the extent of the impact on the view. It is that assessments at that stage having undertaken the first steps in proceedings under Part 2A of the Trees Act that brings us to the assessment of whether the interference with these views is severe or not. 14 We turn now to consider each of the three views that are raised by the applicants in the proceedings. Those views are: o the views from their lower rear balcony; o the views from their family/kitchen room; and o the views from their upper rear balcony.

15 We turn first, out of that order, to the view that is enjoyed through the windows in the family/kitchen room. Those windows have a sill, taking into account the frame of the window, some 1,400 mm above the floor of the room. The views through that window towards the respondents' property were entirely views of the bamboo and other vegetation located on the respondents' property and on the property immediately adjacent to and slightly downhill from the respondents' property, fronting Gow Street. That view would be able to be seen, in our assessment, in two fashions. First, as a view of observed in a transitory fashion whilst walking through the room toward the deck area, either in an ingress or egress fashion to that room. Second, if it were enjoyed in a sitting position, it would be, because of the sill height of the windows, a view that was significantly in an upward direction toward the upper part of the vegetation on the neighbouring properties. With the exception of the Lilly Pilly tree and the tops of the palm trees that are presently on the respondents' property and on their neighbouring downhill property that would obscure the view of the sky from a sitting position in that room, we are of the opinion that the view that would be enjoyed from those windows would be a view of the sky and that, from a sitting position, there would be no realistic opportunity of any water views. 16 We are, therefore, satisfied that the view of vegetation from those windows - an otherwise pleasant and green outlook - is not severely impacted by the vegetation that is the subject of the application. We are, therefore, satisfied that there is no jurisdiction with respect to the view from those two windows. 17 The same position does not apply with respect to the views from the two balconies. We were able to observe - as can be seen from the outlook around the corner of the bamboo from the lower balcony or from each edge of the vegetation, that is both the bamboo and the Lilly Pilly tree, from the upper balcony - that the bamboo does provide, from the upper balcony, a reasonably significant and observable interruption to the view and, from the lower balcony, does almost entirely obliterate the view of the water (although, we acknowledge, that there is significant further interruption of possible views to the water occurring as a consequence of the ridge line of the respondents' house). 18 One matter we should observe, at this time, before expressing a conclusion about either of those views is that the respondents' raised the prospect that either they or their neighbour (upon whose property the Lilly Pilly is growing, which is also a property that presently has a single storey house on it, as is the respondents' house) might make applications to the local council for consent to add an additional storey to their dwellings. 19 That is not a matter that we consider relevant in these proceedings, as there was no evidence of any actual application of either nature before us. If there were to be such applications made, they would be dealt with and assessed by the local council in accordance with the relevant Local Environmental Plan and any Development Control Plan provisions and are thus not matters appropriate for us to speculate upon in these proceedings. 20 However, we are satisfied, at least with respect to the view from the lower balcony, which is the principal private outdoor entertaining space adjacent to the living areas of the applicants' house, that the impact on the view from that location is severe and that our jurisdiction is enlivened with respect to it. Whilst the position is marginally different with respect to the view from the upper balcony (as the view from the upper balcony is primarily a view enjoyed from a balcony that is adjacent to bedrooms and certainly not from a primary living space of the dwelling) it is also, perhaps, arguable that that obstruction might be severe. 21 However, as we have determined that the view impact upon the lower balcony is severe and is appropriate for us to consider intervention, it is unnecessary for us to reach a determined conclusion with respect to the impact on the view from the upper balcony (as any remedy that might apply with respect to the view from the lower balcony will also necessarily have a curative effect with respect to the view from the upper balcony). 22 We turn, therefore, to consider matters contained in the Trees Act in s 14E(2)(b) and that is: "Whether 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 suggests the undesirability of disturbing or interfering with the trees by making an order under this part."

23 It is in consideration of that provision that we turn to consider the respondents' evidence and submissions concerning impacts on their privacy in the rear yard of their property and matters that they have concerning overlooking of their swimming pool and rear area. 24 The test that is posed by the section to which we have referred is one that puts the choice in an entirely yes/no fashion. From reasons that will become apparent from the orders that we propose, it is not necessary for that to be treated, at least in this case, in an entirely yes/no fashion because we are of the view that proper and appropriate protection of the privacy of the respondents can be able to be afforded in a fashion that will still significantly improve (although not absolutely entirely restore) the views that have been enjoyed from the balconies on the applicants' property. As a consequence, we are of the view that s 14E(2)(b) does not stand as an impediment to us making orders in these proceedings, given the nature of the questions that are posed by that provision. 25 We then need to turn to consider the matters that are relevant that arise under s 14F of the Trees Act. There are a number of matters that are potentially relevant. The first - taking them in no particular order - arises from the fact that, as part of the development consent for additions and alterations to the applicants' property, there was a requirement on them to provide screening planting along the rear of their property. Screening planting has been done but which, for whatever reason, has not achieved the height that was envisaged as parted of their development consent. We have little doubt that had the screening planting achieved the height envisaged, as we understand it, in their development consent, it would be unlikely that these proceedings would have been necessary. However, that screening has not been achieved. 26 The second matter that we are obliged to consider is the impact, if any, that pruning of the trees, including the maintenance at a particular height, might have on the trees. We are satisfied, from our knowledge that a regime of regular pruning of the bamboo at a height we propose to determine, would not have an unacceptable impact on the bamboo. In this context, it is also particularly relevant to have regard to the contribution that the trees make to privacy of the respondents' private open space, being a matter raised by s 14F(l) and the question that arises therefrom is the importance to the respondents' of the privacy in their garden for reasons that we do not need to set out. 27 We make the observation that, if there was a matter being dealt with in an conventional planning sense rather than in the statutory nature that is set by the framework of the Trees Act, we would have considered that the separation between the properties was such that ordinary neighbourliness and mutual respect in a suburban residential sense would render the separation between the respondents' private open space and the applicants' balconies acceptable without the intervention of the intervening landscaping, either the landscaping that now exists as the hedge on the property or the landscaping that was required by the council's conditions of consent. 28 However, we are dealing with the matter in the statutory context under Part 2A of the Trees Act. We have concluded that the views from the private open space at the ground floor level of the applicants' property is severely impacted by the bamboo. On the other hand, we have also concluded that it is not unreasonable, under all the circumstances, for the respondents to have the privacy of their family area and swimming pool protected.

29 As part of the measurements that were undertaken on the site a measurement was taken that showed (and was marked on a photograph prepared by us as with the numeral 5) a level up the bamboo at one end at a point approximately equal to the ridge line of the lower rear return area on the respondents' property and the ridge line of the property immediately downhill. We are of the view that the maintenance of the bamboo to a height a small distance above that marked at that point on the photograph, reproduced below, would be appropriate.

30 We are satisfied, from a consideration of this photograph and from the earlier reproduced unmarked photograph taken from the upper level of the applicants' property looking across the respondents' property, that that level will have the effect of preventing any view from the applicants' property into the rear private open space of the respondents' property. 31 It is necessary, given that bamboo is a plant that will grow at some modest speed, that we do not impose a pruning regime on the respondents that is so onerous that they would be obliged to attend to snipping the most minor growth off the top of their plants on a daily basis. We have considered how it would be appropriate to do that. The point that is marked as level 5 on the photograph is at a point that is 1.9 m above the top of the fence at the eastern end of the run of bamboo on the respondents' property. 32 We need also to deal with the question of who should have the responsibility for undertaking the pruning. The applicants' put the proposition that the respondents should undertake any regular pruning. The respondents are concerned that that might impose unreasonable costs on them to do so. We are satisfied that the nature of the order that we propose to make is such that the intervals between pruning will be sufficiently long that it will not be unreasonable to require the respondents to bear the responsibility for undertaking the pruning on that basis. We do so because we have concluded that the appropriate way to frame the orders is to create an obligation on the respondents to undertake the first pruning of the bamboo to a height above the fence that we propose to nominate and then to set a height modestly above that within which the bamboo is to be remained pruned. That regime, in our view, is likely to result in pruning at intervals somewhere between six months and annually, which we think is a not an unreasonable burden to impose on the respondents, under the circumstances. 33 As a consequence of all of the foregoing, therefore, the of the Court orders are: 1. The respondents are to prune the bamboo at the rear of their property to a height of 1.8 metres above the top of the fence between their property and the applicants' property; 2. This pruning is to be undertaken within ninety days of the date of these orders; 3. The respondents are to maintain the bamboo pruned to a height not exceeding two metres above the fence on a regular basis into the future; 4. The exhibits, other than Exhibits A, B, C, H, 1 and 2, are returned.

Tim Moore Phil Hewett Senior Commissioner Acting Commissioner of the Court

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