Martignoni v Ireland

Jurisdictional requirements - Pt 2A

1. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The Court must be satisfied that the trees are causing a severe obstruction of sunlight to a window of the applicant's dwelling, or a severe obstruction of a view from the applicant's dwelling. If so satisfied, the Court must consider matters such as privacy and a range of benefits that the trees may provide. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. 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).
3. Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purpose of the Trees Act.
4. Clumps of Timor Black Bamboo interspersed with tall palms were growing in a loose row about 14 m long from around halfway down the boundary towards the rear, beyond which a Mango tree was positioned near the boundary behind the applicant's studio. In the initial arborist report of June 2023, Mr Griffin estimated the size of the Slender Weaver's bamboo clump, when viewed from the applicant's property, at 6 x 2 m. It was very large and long established.
5. As the Slender Weaver's bamboo predated the occupation of both parties, I was unable to establish whether it had grown from a single clump or spread and melded from clumps planted along the boundary. In contemplating whether the Slender Weaver's bamboo was part of a hedge, I considered Wisdom v Payn [2011] NSWLEC 1012 (Wisdom); at [45]-[46], which says: "45…. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the tree being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge. 46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded."
6. Satisfaction of s 14A(1)(a) requires the trees be "planted so as to form a hedge", thus planted with an intention to form a hedge. I was satisfied the relatively close and regular configuration between the clumps of Timor Black bamboo was typical of a hedge. Further, when the garden was younger, the low palm canopies would have contributed to screening between the properties by filling the spaces between the immature Timor Black bamboo.
7. Neither the parties nor I knew if the palms were planted at the same time as the Timor Black bamboo, but trees may be planted at different times and still be hedge members for the purpose of the Trees Act. Further, as the Slender Weaver's bamboo directly adjoined the Timor Black Bamboo and was the primary contributor to screening between the living areas and bedrooms on both properties, I am satisfied the Slender Weaver's bamboo, the Timor Black Bamboo, and the Bangalow palms formed an informal tropical hedge which satisfied s 14A(1)(a) of the Trees Act.
8. Having been heavily pruned, most of the Slender Weaver's bamboo was less than 2.5 m tall. A similar situation is considered in Wisdom; at [66]-[68]: "66 As a consequence, the four of the trees, T 4 through to T 7 satisfy the jurisdictional test as to height. Although trees T 2, T 3 and T 8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual. 67 For instance, if a group of two or more trees were to be planted in a linear fashion so as to form a hedge but were planted with alternating species so that every second tree was one which, at maturity, was incapable of rising at least 2.5 m above existing ground level but that the second species was so capable and would dominate or engulf the more modest tree species (bearing also in mind that vines are now deemed to be trees by virtue of s 4 of the Trees (Disputes Between Neighbours) Regulation 2007), such a planting arrangement could render Part 2A of the Act inapplicable. Such an outcome is, in our view, entirely contrary to and frustrating of the purposes for which the amendments creating Part 2A were introduced. 68 As a consequence, we are satisfied that these trees, as a complete grouping, satisfy the tests under s 14A."
9. On this basis, as two or more bamboo stems were taller than 2.5 m, I was satisfied s 14A(1)(b) was engaged, and therefore s 14A(1) of the Trees Act is engaged.
10. Even if all the Slender Weaver's bamboo had been pruned below 2.5 m, the circumstances of the case allow for the rationale of Steber v Job [2019] NSWLEC 1308 (Steber) to be applied. This is available to the Court when a hedge was taller than 2.5 m and causing a severe obstruction of sunlight or views when the application was made. Such a hedge is pruned before the hearing, usually below 2.5 m, but the hedge is likely to rapidly re-grow and the obstruction is likely to recur. The respondent prefers not to take meaningful action and fails to take meaningful action over a sustained period.
11. In this case, I am satisfied on face value, that photographs on pages 12 and 14 of the initial AIA and images in the Shadow Study display the Slender Weaver's bamboo at a height and spread that is likely to cause a severe obstruction of sunlight to a window of the applicant's dwelling. Based on the Slender Weaver's bamboo's likely rapid growth rate and Mr Ireland's reticence to regularly prune the height of the bamboo, I am also satisfied that without intervention, a severe obstruction of sunlight to a window of the applicant's dwelling is likely to recur.
12. In these discrete circumstances, regardless that the trees may be shorter than 2.5 m at the hearing, under the rationale of Steber, a tree height greater than 2.5 m and a severe obstruction of sunlight or views by the hedge trees are considered to be an 'ongoing state'. As the trees were recently causing a severe sunlight obstruction and such obstruction is likely to rapidly recur, the trees 'are' severely obstructing sunlight to a window of the applicant's dwelling. Consequently, they are trees which engage ss 14A(1) and 14E(2)(a) of the Trees Act.
13. 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: 14B Application to Court by affected land owner … (a) sunlight to a window of a dwelling situated on the applicant's 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.
14. The applicant owns her property and claims that sunlight to dwelling windows is severely obstructed by the respondent's hedge. The trees are situated on adjoining land, thus s 14B of the Trees Act is satisfied.
15. The applicant provided evidence of satisfaction of s 14C of the Trees Act, which details the requirements for notice of the application to be given to the owner of the affected land on which the trees are located, and to Byron Shire Council (Council).
16. 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)).
17. Pursuant to s 14E(1), the Court is obliged to consider the following matters: (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 tree is 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.
18. Section 14E(1)(a) requires that the applicant makes a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
19. At question 30 of Exhibit B, Ms Martignoni noted initially approaching Mr Ireland on 4 July 2023, with a letter with the Initial IAI attached, which detailed problems from sunlight obstruction, excessive debris, and risk arising from the bamboo. Further letters were sent by the applicant in October 2023 and February 2024, followed by offers inviting without prejudice discussions to resolve the dispute without the resort of Court proceedings. From this evidence, I am satisfied the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, such that s 14E(1)(a) of the Trees Act is engaged.
20. Ms Martignoni provided evidence of service of the application to the respondent and Council in accordance with s 14C. Therefore, s 14E(1)(b) is also engaged.

Is the obstruction of sunlight severe?

1. The next step is to assess the severity of the obstruction of sunlight to a window of the applicants' dwelling, and views from the dwelling as a consequence of any or all of the trees in the hedge.
2. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (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…
3. Ms Martignoni nominated four east facing windows for assessment of severity of obstruction of sunlight. W4 was a living room window at the northern end of the dwelling, while W1-W3 were bedrooms and a service room along the eastern side. Broad eaves extended towards the east and a covered deck adjoining east of the living area obstructed sunlight penetration into the dwelling.
4. The applicant contended, "that all possibility of direct sunlight to a large area of the eastern side of the house, including the main living area, has been blocked by the bamboo hedge". Based on the Shadow Study, Ms Martignoni claimed she would likely access sunlight to windows between 5:45 - 9:00am at the summer solstice and from 6:37-11:00am at the winter solstice if the hedge was pruned at a height of 3 m.
5. In assessing obstruction of sunlight to a dwelling window, the Court takes guidance from criteria used by local government (LG) for assessment of overshadowing by proposed developments. The most commonly applied LG criteria is for direct sunlight to impact at least 50% of a window of a living area for at least 50% of the time between 9am and 3pm.
6. Due to the easterly aspect of W1-W4, the windows received no afternoon sunlight and the applicant's broad roof eaves obstructed morning sunlight. Under the LG shadowing criteria, early morning or late afternoon sunlight access is deemed less significant than sun through the middle of the day, in part because early morning or late afternoon sunlight is more difficult to protect. Based purely on the LG shadowing criteria, the sunlight obstruction in summer would not be deemed severe as it would last only to 9am, after which sunlight obstruction was caused by the dwelling eaves and roof. In winter, sunlight was allegedly obstructed by the eaves and roof after 11am.
7. For the initial AIA, the height of the Slender Weaver's bamboo was measured with a range finder as 15-20 m while the Timor Black Bamboo was 12-15 m tall. The Shadow Study was based on 15 m, a height to which the hedge allegedly caused 100% sunlight obstruction and where the bamboo, "transitions to more dappled cover" due to stems that rise "to 20 m in some places".
8. The Shadow Study included a series of aerial images from a drone. Figures 1-5, and 7 displayed the tall broad clump of Slender Weaver's bamboo forming an impenetrable barrier like a wall and arching over into the applicant's property by about 6 m. Consequently, I am satisfied that the hedge obstructed almost all sunlight otherwise available to nominated dwelling windows, therefore the obstruction of sunlight to a window of a dwelling is severe, such that s 14E(2)(a) is engaged.

Balancing of interests

1. As s 14E(2)(a) of the Trees Act is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This requires assessment of relevant elements in s 14F to determine if: (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.

Discretionary matters - s 14F

1. The trees are located in the respondent's property close to the common side boundary. The Timor Black Bamboo and Bangalow Palms commence about 7-8 m south of the front of the applicant's dwelling and extend further south (s 14F(a)).
2. Mr Ireland claimed that the bamboo was about 5.5 m when Ms Martignoni purchased her property in 2017. Nonetheless, I am satisfied that the majority of the sunlight obstruction resulted from the hedge's growth since that time (s 14F(c)).
3. Under the Byron Development Control Plan 2014 (DCP), effective from 10 October 2024, all species of Bambusa are exempt from the requirement of Council permission for pruning or removal (s 14F(d)).
4. The hedge provides a minor to moderate contribution to the local ecosystem and biodiversity through provision of habitat, and flowers and fruit from the Bangalow palms may be a food source for fauna (s 14F(g)).
5. The recent bamboo pruning was harsh, and the residual stems were left at uneven lengths, but I acknowledge the imperative for the respondent to undertake the pruning as economically as possible. Further, the uneven residual stem length is unlikely to inhibit normal bamboo regrowth (s 14F(k)).
6. The hedge contributed to privacy, which both parties considered very important. It enhanced Mr Ireland's landscaping, his tropical garden design, and the amenity of his land, and provided protection from sun and wind (s 14F(l)).
7. The broad roof eaves and covered deck of the applicant's dwelling and trees on the northern side were also contributing to sunlight obstruction (s 14F(m)).
8. Both parties had taken measures to rectify the obstruction. The bamboo was heavily pruned recently by Mr Ireland, and Ms Martignoni claimed to have spent over $2000.00 maintaining the hedge since her arrival (s 14F(n)).
9. The leaves of the bamboo thin out in winter but the bamboo clump was so thick that this was unlikely to genuinely mitigate sunlight obstruction by the hedge (s 14F(p)).
10. The most significant room to which the applicant's sunlight is obstructed is the living area at the front of the dwelling, through W4. Obstruction of sunlight to W1- W3 is not as significant as W4 because W1- W3 are windows of bedrooms or service rooms, where access to direct sunlight is deemed to be less important (s 14F(r)).
11. Section 14F(s) examines the following two matters which the Court considers relevant in the circumstances of the case.
12. Firstly, in both AIAs, the main clump of bamboo at the northern end of the hedge, the primary subject of the application, was mis-identified as Pring Legi Bamboo (Gigantochloa atter). Pring Legi Bamboo is characterised by stems with a diameter of 100 mm whereas the diameter of the pruned stems of the bamboo on site ranged from 35-50mm. Both Mr Ireland and I identified the large clump as Slender Weaver's bamboo (Bambusa textilis var. Gracilis), but I had not previously seen Slender Weaver's bamboo exceed 11 m in height. Therefore, the large bamboo clump was likely to be Bambusa textilis var. Fusca (Dark Weaver's Bamboo), considered the big brother of 'Gracilis', which rapidly grows to 12-15 m in height. It may, however, be another of the various available cultivars of Bambusa textilis. Henceforth, therefore, I will refer to it generically, as Weaver's Bamboo.
13. The relevance of the misidentification is that both AIA's stressed the risk associated with failed stems of Pring Legi Bamboo. Weaver's Bamboo, however, grows strongly upright and is generally not subject to the type of stem failures attributed to Pring Legi Bamboo.
14. Though an application under Pt 2 of the Trees Act is required to address damage and injury issues, risk of injury was explored in both AIAs and instances of potential damage were evident on site. Both bamboo varieties appeared on the threshold of causing damage. The Weaver's Bamboo was exerting considerable pressure on the common boundary fence, and such pressure is likely to increase, and large shoots were emerging in the applicant's soil near the boundary from the Timor Black Bamboo. Given the foreseeability of such damage by Mr Ireland's trees, responsibility for resolution of potential damage rests with Mr Ireland. Considering the growth capacity of the Weaver's Bamboo, it would be prudent to address the damage sooner rather than later.
15. Secondly, both the application, and copies of communication to Mr Ireland, stressed the maintenance burden arising from bamboo debris falling onto the applicant's paving, roofs, and gutters. Many applications under Pt 2 of the Trees Act include claims which conflate what an applicant considers unreasonable maintenance of leaves and other debris falling or blowing from a neighbour's property as damage. Unless such debris causes actual damage, however, no remedy is available under The Trees Act.
16. In this regard, a Tree Dispute Principle was published in Barker v Kryiakides [2007] NSWLEC 292 (Barker), at [20], which states: "… For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
17. From the drone images, one can see that the immediate vicinity of the parties' properties has a dense cover of trees and palms, including down the entire western boundary of the applicant's dwelling. In such an environment, it is reasonable to expect regular yard maintenance to be required, including professional help for gutter cleaning. Particularly now the Weaver's Bamboo had been pruned, under the Tree Dispute Principle established in Barker, the applicant's maintenance burden arising from the respondent's tree debris would be considered reasonable, and no remedy is available under the Trees Act.

Conclusion

1. Regardless that the Weaver's Bamboo had been pruned prior to the hearing, both bamboo species and the interspersed Bangalow palms satisfied the requirements of a hedge for the purpose of the Trees Act.
2. The Weaver's bamboo, which had grown to about 15 m tall, about 6 m wide, and around 2 m deep was found to be like a wall in its effect, causing a severe obstruction of sunlight to the applicant's windows.
3. Ms Martignoni considered winter sun more valuable than summer sun. In winter, when the arc of the sun is further to the north, shadows cast by the hedge in the early morning would be cast towards the east southeast and move towards the south southeast by late morning. It is therefore unlikely that the Timor Black Bamboo or Bangalow palms would contribute to winter obstruction of sunlight to W1-W4, and sparse foliage of the Timor Black Bamboo and considerable height of the palms would, in any case, permit filtered light penetration. In summer, the Timor Black Bamboo and Bangalow palms may contribute to sunlight obstruction, but only to W1 and W2, windows in rooms where direct sunlight is not considered as essential, and they would still receive filtered light.
4. Nonetheless, I am satisfied the severity and nature of the obstruction by the Weaver's bamboo 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, thus engaging s 14E(2)(b) of the Trees Act.
5. Considering the significance of privacy to both parties and Mr Ireland's preference to not use herbicide, the hedge will not be removed. Rather, orders will be made for pruning of the height of the Weaver's bamboo, at the respondent's expense, in March 2025 and each subsequent March to optimise potential sunlight access during the short days of the cooler months when sunlight is especially valued.
6. As the Timor Black Bamboo and Bangalow palms make only a minor contribution to Ms Martignoni's sunlight obstruction, these trees shall not be the subject of orders.

Orders

1. The Court orders that: 1. The application is granted, in part. 2. In March 2025 and during March of each subsequent year, the respondent, at his expense, shall have the Weaver's bamboo pruned to a maximum height of 3.5 m above ground level by a contractor with appropriate insurance. 3. The applicant shall grant access to the respondent's insured contractors to complete works or tidy the site, upon 72 hours' notice by email. 4. The works shall be undertaken in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 5. All works shall be completed during reasonable daytime working hours.

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