Palmer v Elias

The onsite hearing

1. The hearing commenced with an inspection of the rear yard of the Elias' property where the bamboo grew near the rear boundary. A limited section of bamboo at the southern end related to the Pt 2 application, while all bamboo planted along the parties' common boundary was included in the application under Pt 2A of the Trees Act. The established trees were located, and bamboo height measured.
2. The Court next assembled on the applicant's deck where the impact of the bamboo was assessed, prior to oral submissions. The application under Pt 2A of the Trees Act will be addressed initially.

Jurisdictional requirements - Part 2A

1. The Court's jurisdiction under Pt 2A of the Trees Act is limited. 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?

1. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: (1) This Part applies only to groups of two 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. The bamboo was planted in 2019 in a linear configuration, with clumps relatively close together. They now average about 7 m tall. Bamboo is considered to be a tree under the Trees (Disputes Between Neighbours) Regulation 2007.
4. As a consequence, I am satisfied that the bamboo was planted so as to form a hedge, and thus s 14A(1) of the Trees Act is satisfied.
5. I accept the respondents' claim that the three established trees, the Tea Tree, Lilli Pilli and Melaleuca, long predated the bamboo and are not part of the hedge.
6. Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: 1. sunlight to a window of a dwelling situated on the land, or 2. 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.
7. The applicant owns her property and claims that views from her dwelling are severely obstructed by the respondents' hedge. This satisfies s 14B of the Trees Act.
8. Ms Palmer has also satisfied s 14C of the Trees Act, requiring notice of the application for order to be given to owners of affected land. Section 14D of the Trees Act covers the Court's broad jurisdiction to make orders.
9. Section 14E(1)(a) of the Trees Act requires that the applicant makes a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
10. Mr and Mrs Elias submitted that no reasonable effort had been made by the applicant to reach agreement with them and they provided a long list outlining the applicant's behaviour and email content that they considered unreasonable practices or demands.
11. While I don't make my final decision regarding satisfaction of 14E(1)(a) until before I make an order, I refer to Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280 (Robson) where Preston CJ provides extensive guidance to the 'reasonable effort' required to satisfy the Act. At [195] of Robson, his Honour notes that "The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
12. The requirement under 14E(1)(a) of Pt 2A of the Act is the same as that under s 10(1)(a) of Pt 2 of the Act. His Honour provides a framework for consideration of this requirement at [191]-[194] of Robson. Reasonable effort to reach agreement 191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. 192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. 193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. 194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
13. As a consequence, the requirement to make "a reasonable effort to reach agreement" does not prescribe that a person must negotiate in a particular manner, nor does it preclude the applicant remaining intractable in her claims. Therefore, I am satisfied that s 14E(1)(a) of the Trees Act is engaged.
14. The next requirement of the jurisdiction is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.
15. Section 14E(2)(a)(ii) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned … (ii) are severely obstructing a view from a dwelling situated on the applicant's land.
16. The applicant's residence is upslope of that of the respondents. The applicant's nominated viewing points are from the rear veranda (V1), adjacent living room 1 (V2), a bedroom at the dwelling's southern end (V3) and living room 2 (V4) at the northern end of the house. V4 was considered less relevant than V2 as it was located at a lower elevation. The significance of the view from V3 was also discounted as bedrooms are deemed as mainly for sleeping.
17. From V1, Ms Palmer enjoyed local and district views spanning an arc of about 100 degrees from south-west, through west to north-west. The view includes undulating landforms, and extensive native and urban vegetation. For about 60 degrees, in the segment from west, south-west to west, north-west, distant views are available, which, the applicant claimed, were particularly appealing and were very influential in her decision to purchase her property.
18. Mr and Mrs Elias claimed that upon occupation of her property, the views the applicant now seeks were unavailable, and were exposed only by Ms Palmer's removal of her own vegetation. They cite Fakes C in Reed & anor v Mason & anor [2013] NSWLEC 1159, who, at [55], states; "It was not the intent of the 2010 review of the Trees Act (and its extension to include Part 2A) to provide an applicant with more sunlight or views than were available to them when a property was purchased."
19. Ms Palmer noted that the southern 10 m of the hedge was her priority, and V1 and V2 are both gained at this southern end, south of the respondents' established trees. Having considered photographs from 2019 provided by both parties, I am not satisfied that upon the applicant's occupation, views from V1 and V2 were obstructed by vegetation. Further, no evidence was gleaned or submitted during the site inspection to contradict this finding, so this claim by the respondents was dismissed.
20. The first three steps of the four-step process on view sharing, published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), are often used to assist view assessment under Part 2A of the Trees Act.
21. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. Iconic views are particularly valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
22. The Elias' considered Tenacity to analyse the view severity, as follows: "The view from the applicant's property is a land view not a water view nor is it an iconic view. It is best described as a distant view of bushland. Essentially the main view is straight into our backyard from both a standing and sitting position inside the property as well as outside on the balcony. It is only a partial view and whilst a small part of this view is over our rooftop, if we or future owners built a second storey on our house, there would be no view over our house."
23. A view need not be iconic to be determined under the Trees Act to be severely obstructed. Rather, each view must be considered in context. In Haindl v Daisch [2011] NSWLEC 1145, at [64], Moore SC and Hewett AC state: "It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view."
24. The applicant's desired views are from her main living area and adjoining balcony, which is considered part of a dwelling for the purposes of the Trees Act, and they are across her rear boundary. Each of these elements are prioritised in Tenacity.
25. The Elias' also contemplated future obstruction of views should a second storey be built on their dwelling, but this is not relevant. While s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word are in s14E(2)(a)(ii), requires the trees, the subject of the application, to be severely obstructing views at the time of the hearing. See Tooth v McCombie [2011] NSWLEC 1004 at paras [14]-[15]. By direct inference, Pt 2A of the Trees Act does not consider the impact of possible future development.
26. I understand from the applicant's submission that "a distant view of bushland" is precisely what she values from her view, particularly as it is relatively unspoilt by housing. It is quite common for applicants to savour distant bush views and the sense of spaciousness which such views provide. The views now obstructed were available to Ms Palmer at the time she purchased her property.
27. I am therefore satisfied that the bamboo, which creates a tall dense screen in close proximity, severely obstructs views from the applicant's dwelling. As a consequence, the bamboo hedge enlivens the Court's jurisdiction at s 14E(2)(a)(ii) of the Trees Act.

Whether the severity of the obstruction outweighs other matters?

1. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states: (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. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required: 1. The hedge is located in the respondents' property, parallel and close to the common boundary, which is in close proximity to the applicant's dwelling at its southern end (s 14F(a)). 2. The bamboo was planted in 2019, after the applicant's occupation (s 14F(b)). 3. The bamboo has grown to its current height of about seven m since that time (s 14F(c)). 4. Bamboo is exempt from Ku-ring-gai Council's Tree Management controls (s 14F(d)). 5. The bamboo does not have any historical, cultural, social, or scientific value that is worthy of consideration (s 14F(f)). 6. Being neither a flowering tree, nor endemic, the hedge is likely to make only a minor contribution to biodiversity, though the respondents note that the bamboo "attracts native birdlife into our backyard" (s 14F(g)). 7. The bamboo provides a contribution to the scenic value of the respondents' land (s 14F(h)). 8. The bamboo is not in a sufficiently prominent location to make a contribution to public amenity (s 14F(i)). 9. The bamboo would likely provide benefit with absorption of stormwater, and the respondents note its role in stabilising the soil and preventing landslip and soil erosion (s 14F(j)). 10. Though the applicant sought removal of the bamboo, or reduction of its height to 3.5 m, the views that she covets can be regained by pruning and maintaining the bamboo much higher, which allows for the retention of the bamboo's important privacy and aesthetic contributions for the respondents. While regular pruning is not ideal, now that the bamboo is reaching maturity, it can be pruned lightly relatively often to maintain height without unduly affecting its health or function. Slow, long duration supplementary watering in dry summers should help the bamboo compensate for stress resulting from pruning. The hedge is evergreen (ss 14F(k)(p)). 11. The hedge makes a significant contribution to the respondents' privacy. Given the size and position of the applicant's dwelling, and sightlines between the two dwellings, the bamboo softens the landscape and provide visual screening. It also enhances the landscape design and ambience of the respondents' garden, provides shade, and may suppress smells and noise (s 14F(l)). 12. Foliage from the respondents' established trees also obstructs views from the applicant's dwelling, but the hedge is the primary vector, particularly in the direction where the view is most valued (s 14F(m)(q)). 13. The respondents have not taken action in the past to rectify the obstruction (s 14F(n)). 14. Ms Palmer had vigorously pursued the bush fire risk presented by the bamboo as a justification for its removal, after being advised that such risk existed. Regardless that this issue aroused considerable conflict between the parties, there are numerous judgments under Pt 2A of the Tree Act where bush fire risk of bamboo was not accepted as a basis for intervention with a hedge (s 14F(s)).

Conclusions

1. The bamboo forms a wall-like screen which I am satisfied is causing a severe obstruction of views from the applicant's dwelling, such that intervention is appropriate, at the respondents' expense.
2. The views that Ms Palmer seeks to restore can be regained by pruning and maintaining the bamboo high up the stems. Though this height may restrict some sitting views from V2, it provides for the retention of the bamboo's important privacy and aesthetic contributions for the respondents, and reasonably considers the cultural requirements of the bamboo.
3. This species can normally be lightly pruned relatively often to maintain height without unduly affecting its health or function.

Jurisdictional requirements - Part 2

1. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land.
2. The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act.
3. Section 10(1)(a) of the Trees Act, requiring a reasonable effort by the applicant to reach agreement with the owner/s of the land on which the tree is located, is satisfied. It is the same requirement already met at s 14E(1)(a) of Pt 2A of the Trees Act.
4. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
5. Bamboo culms at the southern end of the hedge close to the applicant's house and veranda, whip around in the wind and have bashed into gutters, causing scratching and minor indentation.
6. Though this damage is minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger) indicates that even relatively minor damage engages the Court's jurisdiction. Though the bamboo is barely currently causing damage, I am satisfied that damage is likely in the near future unless the bamboo is pruned away from the gutters. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.
7. Therefore, as a consequence, s 10(2)(a) of the Trees Act is engaged.
8. Should s 10(2) of the Trees Act be satisfied, the Court is required to consider the discretionary matters in s 12 of the Trees Act, so as to provide balancing of the bamboo's attributes and benefits, against the imperatives informing intervention. In this case, relevant discretionary elements under s 12 of the Trees Act were considered at s 14F under Pt 2A of the Trees Act, and do not need reconsideration.

Conclusion

1. Visual evidence of minor damage to house guttering at the hedge's southern end, caused by bamboo, engaged s 10(2) of the Trees Act.
2. Orders made for pruning to resolve the view obstruction will also resolve this damage issue.
3. The orders of the Court are: 1. Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant's concrete balcony floor. 2. During the last 14 days of March 2023 and during the last 14 days of September 2023, and during the same period of March and September of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge growing adjacent to the common boundary, to a height no higher than a point 500mm above the upper surface of the applicant's concrete balcony floor. 3. The pruning works shall be completed by an AQF level 3 qualified arborist or horticulturist who holds all appropriate insurances. 4. All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 5. Should access to the applicant's property be required to undertake the pruning works, the applicant shall grant such access to the respondents or to the respondents' contractors, who satisfy the requirements of order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works. 6. The tree removal works shall be undertaken during reasonable daytime working hours. 7. The applicant may prune bamboo culms (stems) that protrude into her property to approximately the height specified in orders (1) and (2).

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: 01 December 2022