Le Brocque & anor v Bills & anor

Land and Environment Court (NSW)|2014-09-29|Before: Preston CJ

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONERS: The applicants purchased their Fishing Point property on Lake Macquarie in 2001 and moved into their dwelling in 2003. In 2007 the respondents purchased the adjoining property to the west. In 2011, the respondents planted a row of bamboo along the rear portion of the common boundary with the applicants' property. The purpose of the planting was to screen their swimming pool from direct overlooking from the applicants' property. 2The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the pruning of the bamboo to ground level on the basis that the bamboo severely obstructs sunlight to windows of their dwelling and severely obstructs views of the Lake from their dwelling. 3The applicants have also applied for an order for compliance with a Local Land Board ruling made on 30 March 2011. This is beyond the Court's jurisdiction under the Trees Act to make any such order and no consideration will be given to it except to the extent that it provides some background to the dispute now before us. 4The respondents do not wish to remove the plants as they value them for the privacy they afford their property. 5In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first is whether the trees are planted so as to form a hedge (s 14A(1)(a). 6There is no dispute between the parties that the row of bamboo satisfies s 14A(1)(a). We agree with this position. As the bamboo is in excess of 2.5m, s 14A(1)(b) is met and therefore the Court's jurisdiction to consider the next relevant test, is engaged. 7Section 14E(1)(a) requires an applicant to have made a reasonable effort to reach an agreement with a respondent. While there is some dispute about the effort made, we are satisfied that this jurisdictional test is met. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraphs [191] to [196] Preston CJ provides a general discussion, which is further considered in Ball v Bahramali [2010] NSWLEC 1334 at paragraphs [39] to [45]. Essentially the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur. 8Of importance is s 14E(2), this 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. 9If s 14E(2)(a) is satisfied, the Court must consider the balancing of interests inherent in s 14E(2)(b) before its power to make orders under s 14D is engaged. The balancing of interests requires consideration of the relevant matters in s 14F of the Trees Act.

Does the bamboo severely obstruct views from the applicants' dwelling? 10The applicants nominate three positions on the north-western side of their dwelling from which they contend that the views they once had of Lake Macquarie are now severely obstructed by the respondents' bamboo. For the ease of discussion, the viewing positions are described from the front of their dwelling to the rear. 11V1 is a large outdoor terrace near the front entrance to the applicants' home. The applicants constructed the terrace in 2005 in order, they say, to enjoy the winter sun, achieve protection from southerly winds, and take advantage of the oblique views to the west and southwest of Lake Macquarie. Photograph #2 attached to the application, taken from the northern corner of the terrace before the bamboo was planted, shows the views across the respondents' pool and the reserve beyond it to the Lake. Several large Eucalypts growing on the Lake foreshore punctuate the view. 12V2 (for the purpose of this judgment) is from W2 - the northwest-facing window of a guest bedroom. V3 is the northwest-facing kitchen window that adjoins the kitchen sink. 13At the hearing, while we could discern/ glimpse the Lake through the bamboo from V1 and V2, we are satisfied to the extent required by s 14E(2)(a)(ii) that the bamboo severely obstructs the views of the Lake from these nominated positions. 14In regards to V3, while the bamboo certainly obstructs some of the view from part of this window, the Lake can be quite clearly seem from other parts of it. Therefore we are not satisfied to the necessary degree that the bamboo severely obstructs the applicants' view however, if we are wrong in this, we will consider this window in our determination of s 14E(2)(b)/ s 14F.

Does the bamboo severely obstruct sunlight to windows of the applicants' dwelling? 15The applicants have nominated windows W1 and W2. They maintain that the respondents' bamboo blocks all winter sun, as well as sunlight at other times of the year, to these windows. 16The applicants did not provide any shadow diagrams to support their contention. The application includes a number of photographs. Only photograph #5 shows any shading of the applicants' dwelling. Unfortunately the date and time stamp has been lost in the printing process. The applicants think it was taken some time in winter. The photograph shows the clothesline below W2 to be in dappled shade. There is sunlight on part of W2 with part of it shaded by the fixed awning above it. W1 appears to be almost entirely shaded by the fixed awning above that window. The respondents tendered some photographs in their evidence which they purport contradict the applicants' contentions however they were not clear enough to be of much assistance to the Court. 17On the evidence before us, we cannot be satisfied to the extent required by s 14E(2)(a)(i) that any of the bamboo, the subject of this application, severely obstructs sunlight to the applicants' dwelling. Therefore the Court has no jurisdiction to further consider this element of the application and the application in regards to sunlight is dismissed.

Balancing of interests 18As stated, consideration of s 14E(2)(b) and thus the engagement of the Court's jurisdiction to make orders require consideration of relevant matters under s 14F. The following subclauses are relevant in regards to the severe obstruction of views from the applicants' property.

(a) The common boundary is approximately 3m from the north-western façade of the applicants' dwelling. The bamboo is planted on the respondents' property in a garden bed adjoining the low masonry wall that forms the dividing fence between the parties' properties.
(b)(c) The applicants owned and occupied their property before the respondents purchased their property and then subsequently planted the bamboo. The bamboo has grown to its current height of about 5-6m in that time.
(h)(l) The respondents' primary contention is that given the proximity of the applicants' dwelling and the frequent use of the side terrace and kitchen window, the bamboo was planted to provide privacy to the rear living areas of their dwelling and the pool. In addition, they maintain that the bamboo provides a natural screen and visual amenity and which contributes to the natural landscape and scenic value of their property. However, the applicants contend that the only screen planting on the respondents' property is adjacent to their boundary and that the respondents' pool is overlooked by other properties to the north and northwest, as well as from the Lake and foreshore. Therefore the applicants question the respondents' arguments regarding privacy.
(m) Apart form the respondents' bamboo there are several scattered trees along the foreshore. We note that these punctuate and form part of the view rather than obscure the view of the lake.
(n)(p) The bamboo has not been pruned and is evergreen.
(q)(r) see paragraph [19 ] below.
(s) Earlier reference was made to a finding of the Local Land Board. To the extent it provides some background, in 2011 the respondents in this matter applied to the Local Land Board for orders seeking the construction of a 1.8m high metal fence along the common boundary with the applicants, and presumably to be constructed on top of the existing retaining wall. For a number of reasons, the applicants did not want a fence. The Land Board determined that "a dividing fence, even if erected on top of the retaining wall, would not give any practical privacy. A row of shrubs would give a good privacy result in several years time'. The first respondent maintains that he researched his options and selected the cultivar of bamboo on the basis of advice from the local council and the self-supporting nature of the plant (so that overhang would be minimised). 19In applications made under Part 2A in regards to views, the Court commonly adopts elements of the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. Relevantly, step 1 at [26] - the nature of the view: the view in question is of Lake Macquarie and includes the land/water interface. Such views are generally valued more highly than land/ district views. Step 2 - from where the views are obtained. The view of the lake from the nominated viewing points is an oblique view across a side boundary. The view from the terrace would be sitting or standing. At [27] 'The expectation to retain side views and sitting views is often unrealistic'. Step 3 at [28] - extent of the impact for the whole of the property. Views from living areas and kitchens are more important than views from service areas and bedrooms. In this case, the applicants' primary living area - including an open plan lounge/ dining and kitchen with attached large terrace, located at the rear of their property, affords unobscured and wide views of Lake Macquarie.

Findings 20After considering the discretionary matters in s 14F, we have determined that in the particular circumstances of this matter, in particular the availability of uninterrupted views of the lake from the main living area and terrace, and the proximity of the north-western façade to the respondents' pool, the applicants' interests in having the bamboo pruned to ground level do not outweigh the respondents' not unreasonable desire for privacy. As s 14E(2)(b) is not met, the Court has no power to make the orders sought by the applicants and the application with respect to views is dismissed. 21While some reduced height of the bamboo may achieve a degree of privacy and allow some views from the applicants' property, when given the opportunity, neither party proposed any alternative. In regards to the applicants' contentions about the absence of planted screens on other boundaries and the respondents' desire for privacy, we observed the low hedge along the rear boundary as well as the greater setbacks of the other neighbouring properties. 22As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148 and in Devile & anor v Frith & anor [2014] NSWLEC 1002 at [36]-[37], a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. 23We also note the applicants' submissions in regards to leaf litter and the blockage of drains as well as the potential for the bamboo to damage their dwelling. Should they wish to do so, an application can be made under s 7 Part 2 of the Trees Act.

Orders 24The Orders of the Court are: (1)The application is dismissed.

Judy Fakes Commissioner of the Court

Lisa Durland Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2014

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