Joseph v Spencer

Decision

1. For the following reasons, I propose to grant the application.

The site inspection

1. The hearing commenced onsite at Mr Joseph's property in Kiama Downs. Dr Spencer was present and confirmed at that time her agency to act on behalf of her husband. Dr Spencer (and her husband) are retired dentists with no legal training. They did however obtain legal advice about the tree application and retained a lawyer to prepare an opening written submission which was filed and served and marked Exhibit 1. The submission addresses, under separate headings with extensive referencing to legislation and case law the background facts, the application and orders sought, jurisdictional requirements, assessment of severity of obstruction, evidence on view sharing and a section on the applicant's conduct of the proceedings. At the hearing Dr Spencer said the written submissions summarised her case. She also indicated that her lawyer was available by phone if she required further legal advice. I made it plain that I would accommodate an adjournment to facilitate such a phone call to her lawyer, if required. Mr Joseph is a retired barrister.
2. A site inspection was undertaken. It involved an inspection from the applicant's property of the Spencers' southern boundary where the bamboo hedge is planted and took in the views toward the ocean and headlands from inside the applicant's dwelling and from the backyard. While particular attention was paid to the entire view available from the playroom, I also had regard to the proximity of the upper and lower open decks on each dwelling which are relevant to issues of privacy and amenity.
3. At the request of Mr Joseph, I also observed the more recent development on the northern boundary of the Spencers' property at 112 North Kiama Drive. Mr Joseph explained onsite that he intended to rely on the Spencers' written objection to that DA to support his case. In particular, the importance the Spencers' placed upon the obstruction of the north-eastern view to the Minnamurra Headland from their dwelling. An element of their view which they described in their letter of objection to the Council in 2005, as being "… an intrinsic part of the panoramic view" (Exhibit F annexure A). The same important intrinsic part of the view, Mr Joseph submits, is severely obstructed from his playroom by the bamboo hedge.
4. At the request of Dr Spencer, I also took particular note of the location of the applicant's tree growing toward the sunlight in front of the playroom balcony in the view from the playroom. This aspect of the view is best understood from the photograph marked Exhibit H. It demonstrates that in the view, this element of the tree from that location does not obstruct the Headland and water interface view but instead filters the view to the Spencer's backyard and some of the coastal reserve and coastline which extends across both properties.
5. While conceding that the view to the Minnamurra Headland and water interface is impacted by the bamboo hedge from the viewing location, Dr Spencer maintains that this obstruction is minor and only occurs when one is pressed against the sliding glass doors of the playroom or when standing on a chair in the room. She invited me to take a view from the glass doors - which I did. When positioned at the glass I observed that the part of the view to the Minnamurra Headland and water interface from the playroom is obstructed by the bamboo hedge. However, that is not the only place in the playroom where this element of the view is obstructed by the hedge. As I observed, this element of the view is also obstructed when standing beside the pool table in the location where the Council's officers took their photographs in 2018 (Exhibit H).
6. It is to be noted that at the time of the inspection, I observed that the viewing location, the playroom, with its pool table and paintings and wicker chairs is furnished in the same fashion as when the Council officers attended the site in 2018 before the hedge was planted. As it presently stands the total view I observed from this viewing location within the applicant's dwelling includes to the east the backyard and the vegetated coastal reserve and ocean beyond, the lower open deck and existing tree, the dense, interlocking planted bamboo hedge at a height greater than 2.5m in the north-eastern corner - obstructing the Headland and water interface element which was evident in the photographs taken before the hedge was planted, and clearly part of the earlier panoramic view.

Legislative framework

1. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

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

1. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent, in this case, a severe obstruction of a view from the applicant's dwelling.

Does Pt 2A of the Trees Act apply?

1. For the sake of completeness, I note that pursuant to cl 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act.
2. Section 14A of the Trees Act limits the trees to which Pt 2A applies. (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). (2) Despite section 4, this Part does not apply to trees situated on Crown land.

The bamboo forms a hedge

1. By way of overview it is to be noted that the Court has held that a hedge must contain more than one tree. The trees must be planted, not self-sown, with an intent at the time of planting to form a hedge, and they must still form a hedge: Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [11]-[44] per Preston CJ. Additionally, the trees must rise to at least 2.5 metres above ground level.
2. The words forming a hedge in the section have been held to mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered: Wisdom v Payn [2011] NSWLEC 1012 at [45].
3. In this case, the respondents concede in their written submissions that they planted a row of 4 bamboo plants adjacent to their common boundary (Mr Joseph's northern boundary) with the intention of forming a hedge.
4. At the site inspection, I observed, and Dr Spencer agreed that the planted bamboo has been planted and grown to form a dense thick hedge more than 2.5 metres tall along the properties' common boundary. Accordingly, I am satisfied that s 14A, Pt 2A of the Trees Act applies to the trees.

Matters to be satisfied before any orders can be made

1. The Trees Act provides that the following matters are also relevant. (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. (2) The Court must not make an order under this Part unless it is satisfied that: (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.
2. Based on the answers to the questions in the application (Exhibits A and B) and Mr Joseph's sworn affidavit evidence of 20 October 2021, I am satisfied that the applicant has made a reasonable effort to reach an agreement about the bamboo with the Spencers but to no avail. The applicant has produced a series of emails sent to the Spencers offering practical alternatives over an extended period before he made this application to the Court. The Spencers have elected not to respond to the emails nor the suggested solutions including Mr Joseph's offer to have the trees trimmed to a height to preserve his view and/or his support should they want to have a privacy screen on the existing decks or any future development. They remain steadfast in their resolve to maintain the bamboo hedge on their southern boundary without restriction to ensure their privacy.

Do the trees severely obstruct a view from the applicant's dwelling?

1. The Court's jurisdiction is limited at s 14E(2) of the Trees Act. (2) The Court must not make an order under this Part unless it is satisfied that: (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.
2. The parties offer different interpretations of s 14E(2) and the meaning of the words "…severely obstruct a view from the applicant's dwelling".
3. The Spencers' submit based on the reasoning in Wein v Reeves [2022] NSWLEC 1019 at [10] that the Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of view, or sunlight to windows of the applicant's dwelling.
4. They then rely on the Macquarie Dictionary's definition of the word "severe" (RWS at par 12) to submit that the Act sets a high bar.
5. Next, they cite the decision of the Court in Haindl v Daisch [2011] NSWLEC 1145 in particular [26] and submit that the words "a view" in s 14: "…relates 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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis". They also embrace the words of the Court at [28] of that decision and emphasise that: "For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained in it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise that in accord with the statue that found our jurisdiction."
6. That said, the Spencers then submit that Mr Joseph has misunderstood the legislation and incorrectly focused on the lost view rather than a consideration of all views available from the dwelling (RWS par 17): Wein v Reeves at [38]. This is said to be made plain by Mr Mead's evidence of moderate view loss which the Spencers submit relies solely on the assessment of impacts of the primary views from the applicant's playroom (Exhibit E at par 7(e)). They submit that Mr Mead focuses on an area of view obstruction that the applicant seeks to highlight the most (RWS par 23). They claim his report is based on photographs selected and supplied by Mr Joseph focusing on the area of view obstruction without a site inspection or consideration of the available views from the playroom and the property as a whole. They submit that Mr Mead ignores the obvious tree protrusion in the applicant's property which they submit has the most impact on the view to the north and northeast from the playroom.
7. The respondents advance their architect, Mr Rasa's evidence (Exhibit 2 par 7) as offering an accurate view analysis, highlighting his opinion that: 1. Expansive views from the playroom are still enjoyed by the applicant. 2. The primary view from inside the playroom is to the east toward the beach which is extensive and is uninterrupted. 3. One can only see the view toward the northeast by standing at or close to the front sliding door unit and glazing. 4. Any view from the glazed area is obstructed by the existing tree protrusion on the applicant's property just outside the front of the playroom and to a minor extent by the bamboo planting.
8. And, in terms of applying the steps in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), the Spencers submit (RWS par 26) that: 1. The bamboo hedge obscures the view from the playroom from a vantage point that most captures the view of their rear balcony. If some view of the water from the playroom has been lost it is a relatively small part of the overall view. 2. The part of the property from which the view is obtained is the playroom. The applicant seeks to protect its view across the side boundary. It is not clear if the applicant's complaints of the view obstructed is from a sitting or standing position. 3. The assessment of the view impact as a percentage of the whole of the property must reasonably be less than 2% of the available views enjoyed from the applicant's whole property. Applying here the range of terms used at [28] of Tenacity: "negligible, minor, moderate, severe or devastating". On the Tenacity scale, the obstruction is minor and moderate.
9. In the ultimate the Spencers submit that I would accept that the view obstruction to the whole of the property is not severe therefore s 14E(2)(b) is not engaged. The Court has no jurisdiction.
10. The Spencers' reference to an assessment of the view loss having regard to the whole of the property is at odds with the applicant's position and my understanding of the Court's interpretation of the legislation. In this instance, Mr Joseph's claim relates to the totality of the view from the playroom on the ground floor of his dwelling. The totality of the view, the outlook from that location includes the Minnamurra Headland and its water interface to the northeast (but for the obstructing hedge), the existing tree and the coastal reserve and backyard and ocean beyond. At the commencement of the hearing in Court, Mr Joseph said that he did not press any claim that the hedge impacted his view from any other part of his dwelling such as the upper living room. Therefore, an assessment of the whole/complete view from the playroom is what I must consider based on the evidence.
11. In analysing the totality of what can be seen from the viewing location and without slicing up that outlook (Haindl v Daisch at [26]), I have considered what I observed at the site view, the photographs and the expert and lay evidence. On that basis, I accept that the bamboo hedge obstructs the view to the Minnamurra Headland and water interface and that this is an intrinsic element of the view. That is consistent with the objection made by Dr Spencer to the Council when she described that same view of the Minnamurra Headland in their letter of objection to their neighbours' DA as being "…an intrinsic part of the panoramic view" (at [12]).
12. It seems Dr Lamb also places some significance on protecting this northeast element of the view from the applicant's playroom. In his email dated 17 April 2020, he advises the Spencers to consider significant reduction in the size of their proposed deck and its cladding (Folio B26, Exhibit F) in order to avoid view loss for the property at No 108. A view loss which without amendment, in his assessment of the Tenacity view sharing steps, had the potential to generate moderate to severe impacts.
13. Accordingly, the applicant's focus on the view from the location of the playroom - the whole view from that location - is in accord with Haindl v Daisch (see [28]). Mr Mead has assessed the impact of the bamboo hedge on the whole view from that particular location and concluded that it constitutes a severe obstruction to the north-easterly primary view from the playroom. In forming that opinion, he has relied on his past inspections of the site and photographs provided by Mr Joseph that were taken by the Council officers. I do not accept that these officers have misrepresented the view impact in their photographs by standing on chairs or pressed against the glass as the Spencers' submit. Moreover, I accept Mr Mead's relevant expertise as a planner in making a view impact assessment. In this instance he has applied the relevant tests set out in Tenacity to the facts and offered a reasoned evaluation of the impact on the whole view from the playroom. Relevantly his evidence accords with my own observations taken at the site inspection and for that reason I prefer his evidence to that of Mr Rasa which was at odds with my understanding of the facts. I do not accept that the primary view is in that location to the east toward the beach. The Headland and water interface is an important element of the total view as the Spencers have acknowledged. Furthermore, I do not accept the view to the northeast is only available by standing at or close to the front sliding door unit and glazing. That element of the view is available from various locations in the playroom as evidenced by the Council photographs and my inspection. Finally, I do not accept that the applicant's existing tree which bows towards the sunlight is a greater obstruction in the view to that of the hedge. This tree is located to give privacy to the Spencers' backyard and Mr Joseph's deck and does not interfere with the part of the view to the Headland and water interface.
14. I accept that the Spencers' submission that the Court is required to consider the view in its entirety rather than slicing up the view outlook into separate components for the purpose of claiming any one view is obstructed: Haindl v Daisch at [26] and [28].
15. It is also the case that extensive coastal and/or ocean views and relevantly as in this case, water views in which the land and water is visible are elements which have been held to rank highly in the view assessment principle set out in Tenacity where Senior Commissioner Roseth wrote at [26]: "The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured."
16. Accepting that some parts of a view, such as the view of the water, might be considered as more valuable than other parts: Tenacity at [26], it follows that in considering the overall view from the applicant's playroom which is expansive, taking in most of the landscape, that the view to the Headland and water interface is more important than the coastline view obstructed by the existing tree and the view to the backyard and vegetation on the reserve and beyond.
17. Dr Lamb's visual assessment of the view loss albeit concerning the impact of the Spencers' earlier development application from the applicant's playroom lends weight to Mr Mead's specific view analysis carried out for this tree application. I prefer Mr Mead's evidence to that of Mr Rasa which I believe to be factually inaccurate for the reasons outlined in [38]. He may well have attended the site on 24 November 2021 to assess the views available from the playroom in the context of the existing bamboo planting, but his conclusions do not accord with my observations or Mr Mead's evidence which I accept. Accordingly, I find on the evidence of Mr Mead and my observations of the whole view impact from the playroom that there is a severe obstruction to that view generated by the hedge acknowledging the legislation sets a high bar as to what constitutes a severe obstruction. When I compare the Council photos in 2018 from the playroom with what I observed at the site inspection it is clear that the whole view from the playroom is severely impacted by the Spencers' bamboo hedge because an important element of the view to the Minnamurra Headland and land/water interface is totally obstructed. A view which the Spencers give special priority to in the evidence before me.

Matters to consider at s 14F

1. The Trees Act invites me to consider whether the severity and nature of the obstruction 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.
2. Before I make any orders, I must consider the matters at s 14F of the Trees Act. (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.
3. Having weighed the relevant matters in s 14F set out above, as discussed earlier and including:

• the proximity of the bamboo hedge to the part of the dwelling and property boundary and the fact that the dwelling existed before the trees,
• the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,
• the impact of the applicant's existing tree to the view,
• the action taken to date by both parties to prevent the obstruction such as the Spencers' decision to plant only four trees instead of six trees in the holes dug along the common boundary,
• the contribution of the four trees to the Spencers' privacy,
• the scenic value of the trees,
• acknowledging that regular pruning can maintain the bamboo's height and is a relevant consideration in removing the obstruction, but that is not the application as presently amended. The applicant has not sought this order given the animosity between the parties and I accept that orders which resolve the obstruction of the view without requiring ongoing interactions between these neighbours is not only within power under s 14D but appropriate in the circumstances.

1. In my assessment of the evidence, the severity and nature of the obstruction is such that the applicant's interest in having the obstruction remedied outweighs any other matter that suggests the undesirability of disturbing the trees by making an order under s 14E(2) of the Tree Act.

Conclusion

1. I find it is appropriate to make orders to remedy and prevent the view obstruction.
2. Considering the impacts of any orders on the parties, and with the aim of providing final resolution to this dispute, I have concluded that removal of the two bamboo trees closest to the eastern property boundary should be ordered. These orders do not require ongoing interactions between the parties about the height of the trees or any other matter relating to the hedge. However, the Spencers will be responsible for removing any bamboo that spreads and grows on her property in future in the location of the bamboo ordered to be removed.
3. Importantly, the removal of these two trees will address the obstruction to the relevant view whilst maintaining the mutual privacy that Dr Spencer explained was the motivation behind the planting of the hedge.

Orders

1. The Court orders: 1. The application is granted. 2. Within 21 days of the date of these orders, the respondents are to remove the two bamboo trees (culms) of the hedge growing along their rear southern boundary closest to the eastern boundary of the property. 3. The respondents are then to take any steps necessary to prevent the existing bamboo from regrowing by poisoning any remaining roots from the removed bamboo trees. 4. The respondents are to give the applicant at least 2 days' notice of the works in Order (2). 5. The applicant is to allow any access required to their property for the purpose of cleaning up debris resulting from Order (2). ……………………… S Dixon Senior Commissioner of the Court

Amendments 17 February 2022 - Correction of typographical error at [36] - amended to "site". 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: 17 February 2022