Popescu v Tepes

Land and Environment Court (NSW)|2023-09-05

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

Background

Valentina Popescu, the applicant, has owned and occupied a property in Casula since 2002. Roman Tepes, the respondent, purchased the adjacent neighbouring property in or around 2015 and installed a pool in his backyard soon after.
In his response of 15 August 2023, Mr Tepes submitted that a condition of consent of the pool development application approval required removal of existing trees which were growing close to the parties' common boundary. The trees' removal was based on the trees' propensity to be climbed, like a ladder, which presented water safety risks. Photographs at page 6 of the application and at Annexure 1 of the response showed these trees were relatively dense and about 5.5 metres (m) tall in 2015.
In the absence of screening, direct oversight of the respondent's back yard and dwelling was available from a balcony at the front of the upper level of Ms Popescu's two storey dwelling, adjoining a living area. To re-establish privacy and soften the appearance of the applicant's tall dwelling side wall, the respondent planted Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo) close to the parties' common side boundary, which is oriented approximately east-west.

The onsite hearing

The hearing was conducted onsite with both parties present. The bamboo in Mr Tepes' rear garden was inspected initially, after which the Court moved to Ms Popescu's property to assess the bamboos' impact, and for oral submissions.
The applicant's (summarised) proposed Orders are: 1. Removal of all bamboo, and replacement with plants requiring less maintenance. 2. Replacement plants shall be maintained below 3 metres above ground level. 3. No replacement trees or hedges along the common boundary shall be planted in blocks longer than 5 metres, to allow ventilation and sunlight to the adjacent dwelling wall.

Jurisdictional requirements - Part 2A

Part 2A of the Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.
Section 14A(1) states: (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).
Section 14B of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located, any relevant authority, and any other person the applicant has reason to believe will be affected by the order.
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)).
Section 14E of the Act addresses matters of which Court must be satisfied before making an order, as follows: (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.
Section 14E(2) of the Act, which is particularly significant, 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.
If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Act.

Is bamboo a tree?

Bamboo is prescribed as a tree for the purposes of the Act in accordance with s 4 of the Trees (Disputes between Neighbours) Regulation 2014. Bamboo is increasingly being used for hedges and screening in urban areas and is the subject of many applications to the Court under Pt 2A of the Act.

Do the trees form a hedge?

The first test under the Act, at s 14A(1) is: are the trees a hedge for the purpose of the Act?
The bamboo was growing in a dense linear configuration along the common boundary, though its total length of almost 17 m was separated into two hedges by a gap about 3 m wide between the eastern end and the middle of the common boundary. The respondent acknowledged that he planted clumps of Slender Weaver's Bamboo to gain privacy and provided copies of receipts from the bamboos' 2015 purchase. The bamboo was about 6 m tall and had the appearance of a hedge.
Therefore, I am satisfied that these trees are planted (whether in the ground or otherwise) so as to form a hedge and are taller than 2.5 m, such that s 14A(1) of the Act is engaged.
Section 14B of the Act is satisfied as the applicant applied for relief from an obstruction caused by the respondent's bamboo hedge, which comprised trees to which this Part applies, and which are situated on adjoining land.
The requirements of s 14C of the Act have been satisfied, as the applicant provided evidence of appropriate notice of service of application and proposed orders on both the respondent and Liverpool Council (Council).
While s 14D(1)'s "…as it thinks fit…" allows for a broad range of orders, s 14D(2) lists orders that might ordinarily be appropriate for addressing a severe obstruction of sunlight or a view, including at (a) and (b) the making of orders that would "require the taking of specified action" to remedy, restrain or prevent the obstruction. The Court also has scope to make orders per s 14D(2)(d) of the Act, which requires the removal of a tree or trees and their replacement with a different species of tree.
Section 14(E) of the Act covers matters of which the Court must be satisfied before making an order. Section 14E(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
Ms Popescu, at question 30 of Tree Dispute Claim Details (Form G), provided evidence of engagement with the respondent and Mrs Tepes in 2021 and requests for bamboo removal or pruning. Further, the parties conducted mediation through a Community Justice Centre in November 2021 which was initiated by the applicant. Regardless that mediation failed to resolve the bamboo issue, these actions by the applicant satisfied s 14E(1)(a) of the Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
Section 14(E)(1)(b) is satisfied as the applicant has given notice of the application in accordance with section 14C.
The next step is the principal test under Pt 2A of the Act; to assess the severity of the obstruction of sunlight to a window of a dwelling, or the severity of the obstruction of views from the applicant's dwelling, as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a) states: (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.

Obstruction of sunlight to a window of a dwelling

The applicant's property, which is located at a higher level than the respondent's land, faces east with a steep driveway leading down to a cul-de-sac. The dwelling's first-floor east end balcony, located above a double garage, was about 3 m deep and was covered by the dwelling's pitched roof which also extended beyond the north side wall by about 600 mm.
In her application, at page 7, Ms Popescu included a photograph of the hedge obstructing sun to her driveway and garage doors and, on page 9, described this as bamboo hedge "blocking out the sunlight to the front yard as well as half of the brick wall of my house". On page 10, Ms Popescu added that; "The height of the bamboo overshadowing the sunlight from my property frontage resulting in shadow on the driveway and shading the house and balcony".
From the application, and the applicant's oral submissions, it became apparent that Ms Popescu had not appreciated that the language of s 14E(2)(a)(i) restricts the jurisdiction of the Act to "a severe restriction of sunlight to a window of a dwelling", notwithstanding that it is displayed at question 1 of Form G. The Act thus provides no remedy for obstruction of sunlight to yards or driveways, so this element of the applicant's claim was dismissed.
In response, Ms Popescu nominated a north facing garage window and her east facing first floor glass doors and windows at the rear of her balcony for assessment of severity of obstruction. As with yards and driveways, the garage window does not satisfy the jurisdiction of the Act because a 'dwelling' is where a person dwells or lives, and a garage is not designed or approved for such a purpose. This jurisdictional limitation was similarly found in Lee v Stapleton [2022] NSWLEC 1430.
As the applicant's balcony doors and windows face east, they can receive direct sunlight only in the morning in winter and up to about 1pm when 'daylight saving' is operating. In summer, when the sun's diurnal arc is just north of east-west, sunlight would reach these windows and doors from early to mid-morning, after which they would become increasingly shaded by the balcony's broad roof and sloping eaves. The hedge would thus cause minor obstruction of sunlight to the balcony windows in summer.
Though the sun's diurnal arc was further north at the September hearing than during summer, the applicant's balcony was sufficiently elevated for morning sunlight to shine above and through the bamboo to reach the balcony doors and windows, such that the extent of sunlight obstruction was clearly less than severe at the hearing. During winter, the obstruction of sunlight would likely be worse but I am not satisfied that the hedge would cause a severe obstruction. Rather, the broad downward sloping north side roof eave is likely to most obstruct sunlight. Accurate assessment is aided by appropriate shadow diagrams, as requested at Question 4 of Form G, but shadow diagrams were not submitted by the applicant.
Section 14E(2)(a)(i) of the Act was thus not engaged.
Ms Popescu claimed that the bamboo's height had been significantly reduced prior to the hearing, before which it had been far taller than her gutters and encroaching onto her house. This was displayed in the June 2023 photograph from page 17 of the application, and November 2021 photographs from page 22 and 23, which showed dense bamboo culms (stems) extending some metres above the applicant's gutters and encroaching towards the wall and balcony.
At this height and extent, it is likely the bamboo was severely obstructing sunlight to balcony windows. It also raised the spectre of damage to gutters from scratching and denting and possible risk of injury from culms lashing onto the balcony in storms, as described by the applicant and displayed in a photograph.
Nonetheless, considering Tooth v McCombie [2011] NSWLEC 1004 at paras [14]-[15], the inclusion of the word 'are' in the 'present tense' in s14E(2)(a) of the Act, requires the trees the subject of the application to be severely obstructing a view, or sunlight to a window, at the time of the hearing. As sunlight obstruction to windows and its impact on warmth is usually most severe in winter, the severity of shadowing at the winter solstice may also be considered.

Obstruction of any view from a dwelling

Ms Popescu submitted that former views of buildings in Liverpool, distant views of buildings in Parramatta, and New Year fireworks displays, were now severely obstructed by the hedge. In assessing the severity of a view obstruction, the Court has often taken guidance from a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).
The first three steps of the four-step process in Tenacity are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected - water views are valued more highly than land views, and iconic views such as the Opera House, the Harbour Bridge or North Head, are particularly valued. Whole views are valued more highly than partial views, and the interface between land and water is 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.
Though Tenacity's first step addresses iconic and water views, this does not prevent obstruction of less 'classic' views to be assessed as severe. In Robinson v Nagle [2021] NSWLEC 1356, at [23], Galwey AC notes: "In my experience, Tenacity's first step is sometimes interpreted by practitioners as implying that a view without iconic features - perhaps a view of parkland, or the suburban landscape - does not warrant consideration under Pt 2A of the Trees Act. I do not accept that, as any view might be important to an applicant. Rather, this first step of the view-sharing principle assists with assessing the potential loss of a view, especially the loss of parts of an overall view."
While I concur that "any view might be important to an applicant", this does not remove the onus on an applicant to prove that the impact of a view obstruction is severe, and distant and relatively nondescript views are prone to reduce the severity of obstruction. In conducting my analysis with the benefit of Tenacity, the applicant's overall view included the aforementioned bamboo, and, within an arc spanning north-east to south-east, neighbouring dwellings and gardens and district views with large trees and ample sky.
The nominated views towards the north are gained entirely across the common boundary and the respondent's property. Noting the second step of Tenacity, "the expectation to retain side views and sitting views is often unrealistic. Further, Tenacity's third step considers the view obstruction for the whole of the property and not just the view that is affected. Though it may not be her preferred viewing position, the applicant's desired views were available from positions on the east end balcony, and from the south-east end of the adjacent living area, through a gap in the hedge about 3 m wide. As a result, I find the applicant's view obstruction to be less than severe.
As the hedge's obstruction of sunlight to a window of a dwelling or obstruction of views is not severe, the requirements of s 14E(2)(a) of the Act have not been satisfied, so the Court has no powers to make orders. Consequently, the application pursuant to s 14B of Pt 2A of the Act is refused.
Although there is no requirement for me to address s 14E(2)(b) of the Act or discretionary elements at s 14F, Ms Popescu's application maintained a theme concerning the unreasonable burden and cost of maintenance of bamboo leaves and other debris falling or blowing onto her land, which is relevant to consider in the circumstances of the case (s 14F(s)).
As many applications include claims of damage relating to tree debris blowing or falling from neighbours' trees, and excessive maintenance burdens so imposed, the Court established the following Tree Dispute Principle, at [20] of Barker v Kyriakides [2007] NSWLEC 292 (Barker): "It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: 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, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."
This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applied here with respect to all bamboo debris described by the applicant and observed on her ground surfaces. Cleaning of mould and slime associated with tree debris is also considered and refused, as the maintenance expectation arising from Barker was extended in Hendry & anor v Olsson & anor [2010] NSWLEC 1302, at [11] to [14], to include the cleaning of mould and slime.
Claims of excessive mould have been common in applications made under the Act in recent years. During 2020 - 2022, Australia experienced three successive La Nina weather cycles, resulting in annual rainfall, especially in 2022, far above average across most of NSW. Mould on paved surfaces and algae growth on the applicant's south facing metal panel fence may be largely attributed to this high rainfall and associated moisture accumulation.

Considerations under Part 2 of the Act

Though Ms Popescu made no application under Pt 2 of the Act, her submissions addressed various Part 2 elements, some of which deserve consideration. The characteristics and nature of the bamboo are relevant as the bamboo had been mis-identified by the applicant as a rhizomatous variety, and the respondent failed to appreciate the bamboos' propensity to cause damage.
There are two main types of bamboo in the urban landscape which are grouped into rhizomatous or 'running' varieties, and clumping varieties. New culms of running varieties grow from rhizomes, which are underground stems that spread steadily and extensively wherever environmental conditions allow. It is difficult and often expensive to control and remove.
The respondent's Slender Weavers Bamboo is a clumping variety, which does not develop rhizomes. New stems shoot from within a clump and emerge close to clump edges, gradually increasing its size. There is a common misconception, however, as displayed in copies of emails between Mr Tepes and his bamboo merchant, that the growth of Slender Weavers Bamboo is 'non-invasive' and that it lacked the ability to cause damage to surrounding objects.
Though Slender Weavers Bamboo is far less problematic than rhizomatous bamboo, it has considerable potential to cause damage to encountered objects such as fences, and thus conflict between neighbours. The Court inspects many sites where this species is used and in a recent instance, a single 13-year-old clump, growing with average soil and environmental conditions, was almost 2 m wide and about 10 m tall.
Where this species is planted close to boundaries that lack strong barriers to deflect its progress, it may readily spread under fences into neighbouring properties. Though Mr Tepes claimed that roots Ms Popescu exposed near the boundary emanated from the applicant's palm trees, such an assumption may be imprudent as bamboo and palms have roots of similar appearance. Considering the close proximity of bamboo to the boundary, future stem incursion into the applicants' land is likely, and this may be deemed as damage.

Conclusions

The application under Pt 2A of the Act was refused as a garage window was not a window of a dwelling, sunlight to the applicant's nominated balcony windows and doors was not severely obstructed by the hedge, and nor were the applicant's views.
The extent and frequency of past bamboo pruning was contested. Ms Popescu claimed that maintenance had been rare and inadequate. Mr Tepes claimed pruning had been more frequent and was fit for purpose and he asserted his right to privacy, and having natural foliage concealing the applicant's wall, but emphasised the impracticality and difficulty of trimming the hedge sufficiently high to maintain such privacy.
The applicant's photographs of 'wild' bamboo growth prior to pruning and Mr Tepes' rather cavalier attitude led me to highlight Steber v Job [2019] NSWLEC 1308 (Steber) which provides, under certain circumstances, for the Court to make orders when trees, especially bamboo, are pruned prior to a hearing.
As Mr Tepes made a unilateral commitment to maintain the bamboo below the height of the applicant's gutters in future, I considered the approach established in Steber to be inappropriate in this case. Should Mr Tepes not undertake reasonable maintenance, however, and another application is made by Ms Popescu, the precedent in Steber may become relevant.
Claims regarding the maintenance burden from bamboo debris falling and blowing onto the applicant's land are refused with consideration of the Tree Dispute Principle established at [20] of Barker. While I acknowledge that the maintenance burden is difficult for Ms Popescu, this is a reality that often comes with increasing age, where assistance may be required.

Orders

The Court orders are: 1. The application is refused.

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: 31 January 2024

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