Jones v Cooper [2020] NSWLEC 1688 | Case summary

Land and Environment Court (NSW)|2020-11-12

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

Mr Jones, the applicant, occupied his property at Bowen Mountain in 2017. The rear of his house faces towards the east, and he would like to take advantage of the town's elevation of about 400 metres, and improve his views of the Sydney basin from the east around to the south-east.
The applicant's potential view is restricted by trees and bamboo, growing in the neighbouring property to his east, with which his property shares a north-south boundary. In pursuit of improved views, Mr Jones submitted an application, pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), claiming that the bamboo in his adjacent neighbour's property is a hedge which severely restricts his views.
Mr Jones' application designates Mr Steven Cooper as the respondent, but Ms Felicity Cooper, in an affidavit dated 25 September 2020, identifies herself as the registered proprietor of the property. She is also identified as the respondent, in her Counsel's 'Outline of Submissions'. Mr and Mrs Cooper occupied their property in mid-2018. Mr Jones delivered a handwritten letter to the owner's letterbox in November 2018, and a further letter in January 2019, requesting reduction of the height and density of the bamboo to improve the "natural airflow" and improve the "outlook from my home". When both these letters went unanswered, Mr Jones sent a further letter in March 2019, which noted his intention to escalate "this issue for resolution", if he received no response by 17 April 2019.
Mr and Mrs Cooper commissioned Dentons Australia Ltd, Solicitors, to respond on their behalf, and various additional letters were exchanged. Mr Jones has not had the opportunity to meet or speak directly with the respondent.

The onsite hearing

The hearing commenced with an inspection of the bamboo, and other trees in the respondent's side yard. The bamboo occupies a large area on the western side of the respondent's expansive yard. It forms a dense screen, in proximity to the boundary with not just the applicant, but with many of his neighbours, both to the north and the south, who also share their rear boundaries with the respondent.
The Court moved to the applicant's property, to assess the tree's impact on views, and convened on the applicant's upstairs balcony for submissions. Mr Jones attended the hearing, while the respondent was represented by Dr Smith of Counsel, and Ms Vatala, Solicitor.
The applicant's property is higher up a slope than that of the respondent and in the absence of the bamboo, the applicant would overlook the respondent's house and yard.

The applicant's case

Mr Jones seeks the following orders: "(1) The trimming and ongoing (6 monthly) maintenance of the hedge in question to a level of 4 metres from the ground. (2) The trimming and ongoing (6 monthly) maintenance of the hedge in question to maintain a 1.5 metre clearance from the boundary fence between our properties."

The respondent's position

The respondent values the privacy provided by the bamboo, particularly the role it plays screening upstairs bedrooms and bathrooms which face the applicant's outlook. The respondent stressed that privacy provided by the bamboo had a major influence on her purchase decision, after previous difficult experiences at other properties.
The respondent thus resists pruning of the bamboo to reduce height, but in a letter to the applicant, dated 17 April 2019, Ms Vatala acknowledged that the respondent "will arrange for the bamboo to be maintained to a nominal distance of approximately 1.5 metres off their boundary."
Amongst the correspondence provided by the respondent, reference is made to various past incidents of alleged trespass by Mr Jones, during the current and previous ownership of the respondent's property. While this is of little relevance to the Court, an affidavit filed by one of the previous owners, Mr Roche, on 25 September 2020, notes that the bamboo was already located on the property, when he and his wife purchased it, in about 1980.

Jurisdictional requirements

In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
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).
The bamboo is comprised of hundreds of stems, with the tallest rising to about eight metres. The respondent's Outline of Submissions acknowledges that the bamboo has risen to a height of at least 2.5 metres, and that the bamboo was planted so as to form a hedge. Based on the evidence adduced from the site inspection, I am not satisfied that the bamboo was planted so as to form a hedge.
This species of bamboo is a running variety, rather than a clumping form more commonly used in modern applications. Running bamboos are monopodial and have long rhizomes that rapidly spread horizontally. Clumping varieties are sympodial and have much shorter rhizomes that curve upwards soon after emergence, and thus spread much less rapidly.
As with tree roots in general, these rhizomes are opportunistic in that they develop more readily and extensively, where growing conditions are most conducive. While this is ecologically logical, the pattern of spread observed above the soil surface may appear somewhat random and disordered, without a predictable pattern.
Therefore, given this bamboo is reported to have grown on this site for at least 40 years, and there is no reason to suggest that this is not the case, there is no evidence to support the assertion that the bamboo was planted on the respondent's property so as to form a hedge.
There are many other possible origins leading to the bamboo's establishment; it may have 'escaped' from a neighbouring property. Alternatively, as often happens, it may have originally been a potted specimen, which, upon becoming overgrown, was planted into the garden. The characteristics of the long-established bamboo on the site, particularly in light of both parties only having occupied their properties within the last four years, provides no hint of intent to plant the bamboo so as to form a hedge.
In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson) at [11]-[37], Preston CJ examines the language of s 14A(1)(a) with respect to trees which are self-seeded, as opposed to being planted.
At [38] of Johnson, his Honour notes; "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees."
This analysis similarly applies to trees, which bamboo is considered under the Act, which emerge from rhizomes, rather than specifically being planted.
On this basis, I conclude that s 14A(1) is not satisfied, and therefore the application fails to meet the requirements of the Act.
Even if the requirements of s 14A(1) had been satisfied, it is not the intent of the Act to remedy hedges already severely obstructing sunlight, or views, at the time of property purchase, as may be the case here.
The Interpretation Act 1987 permits reference to relevant material to assist in interpreting the Act, and in this respect, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review').
On page 39 the Review describes the Act's scope, which includes; "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 which had not existed at the time of purchase."
The respondent's Counsel's 'Outline of Submissions' addresses this issue, on pages 4 and 5; "It is important to note that this Court has consistently determined that an Applicant is not entitled to a view which was not available to him when he purchased the property: see Fyday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150; Price & anor v Harrison & anor [2013] NSWLEC 1149; Bowden v Grayson [2013] NSWLEC 1161; and McDougall v Philip [2011] NSWLEC 1280. In Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150, Acting Commissioner Galwey found it relevant that the impact of trees on the Applicant's property had not changed from when he purchased the property: see [47]. In McDougall v Philip [2011] NSWLEC 1280 (McDougall), Commissioner Fakes had regard to the Second Reading Speech to the amendment to the Act."
At [21] of McDougall v Philip [2011] NSWLEC 1280 (McDougall), the Commissioner noted; "Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act. The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies. The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act. The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review."
At [23] of McDougall, Commissioner Fakes added; "The discussion relating to Recommendation 9 [page 35] states in part that: The Court would only have the power to hear matters regarding: ....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 in this case a view] which had not existed at the time of the purchase."

Conclusion

Given that s 14A(1) is not satisfied, and that it is not the intention of the Act to address obstruction of views that were unavailable prior to the applicant's property purchase, there is no need to assess the severity of the obstruction of all or any of the views from the applicants' dwelling (s 14E(2)(a)), nor to consider the balancing of interests, otherwise required by 14E(2)(b).

Orders

The Court orders that: 1. The application is dismissed.

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: 29 January 2021

(2012) 190 LGERA 334

Jones v Cooper

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