Powell v Kalantzis [2019] NSWLEC 1256 | Case summary

Land and Environment Court (NSW)|2019-04-18|Before: Centre J

Judgment

COMMISSIONER: Mr and Mrs Powell, of Mt Kiera, submitted an application, pursuant to s 7 of Part 2, and to s 14 B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act).
The Powell's first occupied their property in January 2014 and commenced building a large rear yard extension in June 2014. In November 2014, the respondent, Mrs Kalantzis, planted Bambusa textilis 'Gracilis' (Slender Weaver's Bamboo) adjacent and parallel to the common side boundary on the northern side, to block views into her property from the deck and windows of the extension. The Powell's occupied the new dwelling in October 2015. Photographs, taken around this time, submitted by the applicants, display extensive views of the ocean to the east, and south-east.
The Powell's claim that by January to March 2016, tall bamboo culms were hitting their house during winds, disturbing their sleep, and getting caught under the eaves. They pruned these culms away from the eaves and gutters and claim that this resulted in accusations of 'malicious damage' by the Kalantzis', and reporting of the incident to the police. Following police advice, the Powell's organised mediation through Wollongong Community Justice Centre (CJC) in August 2016, and a written agreement was formulated. A copy of this agreement was included in the Respondent's Evidence and Alternatives (Submission), dated 5 April 2019.
In early January 2017, the applicants wrote to the respondent seeking pruning of the bamboo. They claim that the Kalantzis' response, of only allowing removal of specified tall culms, would not address their damage and noise issues. As an alternative, Ms Christina Kalantzis advised that she would have a 'pole and wire' structure erected along the boundary in the first quarter of 2017, to prevent the bamboo hitting the Powell's house, but this did not eventuate. In response to inaction, the Powell's organised a letter to the Kalantzis' from their solicitors in April 2018, seeking compliance with the CJC agreement. Upon receiving what they viewed as an inadequate response, they sought redress under the Act.

The hearing

The hearing commenced with an inspection of Mrs Kalantzis' rear yard. At the western end of the bamboo screen, closest to her residence, it was located in a raised garden bed about 700 - 1000mm wide, and it extends from a few metres west of the applicants' extension continuously for about 24 metres to the rear, eastern boundary. It is wider and denser towards this eastern end, and is less dense near the middle, where it is shaded behind a garden shed.
The hedge was then viewed from the Kalantzis' rear upstairs family room, which Ms Christina Kalantzis and her son often occupy. Ms Kalantzis emphasised her desire to retain the existing hedge for privacy and strongly resisted it being pruned lower than the applicants' house ridgeline. To the east, there are uninterrupted ocean and coastal views through large windows.
Viewed from the applicants' deck, the hedge blocked views in almost all directions, especially towards the ocean. Many culms extended above the gutter height. Options for pruning, which provided for both views and privacy, were explored with both parties.
The Court assembled in the applicants' sunroom for submissions. Mr and Mrs Powell were self-represented while Mrs Kalantzis was represented by her daughter Christina, acting as her agent, and her son. Mrs Kalantzis' application included an Expert Witness Report, dated 3rd April, 2019 from Mr Hayden Coulter of The Ents Tree Consultancy. He acknowledges and agreed to be bound by the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedures Rules 2005.
It is expedient to address the Part 2A application first.

Jurisdictional requirements - Part 2A

In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].

Do the trees form a hedge?

The first test is s 14A(1), that is, is the bamboo planted along the northern boundary of the respondent's rear yard, a hedge for the purpose of the Act?
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).
As bamboo is prescribed in the Trees (Disputes between Neighbours) Regulation 2007 as a 'tree' for the purpose of the Act, and this hedge, planted in 2014, now reaches about seven metres in height, s 14A(1) is satisfied.
The next step 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.
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.
The applicants' residence is upslope from that of the respondent. Both dwellings face the road to the west, but their rear living areas are designed to capitalise on views towards the ocean and Bass and Flinders Island to the east and south-east, and Wollongong to the south south-east. Three viewing points (V1-V3), nominated by the applicants, are located in the rear living area and one, V4, is at the eastern end of the adjacent veranda.
In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and this case was referenced by Ms Christina Kalantzis in her Submission.
The first three steps of the four step process are considered relevant to Part 2A. 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. 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.
In his report, Mr Coulter classified the hedge as two sections, each about 12 metres long. Section one runs from the western end near the respondent's garage to near the centre of the hedge, while section two runs from the centre to the eastern boundary. It is appropriate to analyse the hedge, with respect to Tenacity, as these two sections, and also logical to initially consider section two.
In applying those principles to section two, the view in contention spans almost 90 degrees of ocean, and includes islands and the interface between land and water. Its direction ranges from east, behind the applicants' property, around to the south south-east. With consideration for Ms Kalantzis' privacy, Mr and Mrs Powell clarified their claim to regaining standing rather than sitting views from V1 - V3 inside the house.
Considering the third step of Tenacity, the extent of the impact for the whole of the property is certainly severe. With the exception of a thin sliver of ocean currently visible, all views from the rear living area and the adjacent deck, which is included as a living area under the Act, are blocked by the Kalantzis' bamboo hedge.
Though the Court sets a high bar when considering the word 'severe', I am satisfied the trees in section two of the hedge are severely obstructing a view from a dwelling situated on the applicants' land, and the Act is therefore engaged (s 14E(2)(a)(ii)).
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.
In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

(a) The hedge is located in the respondent's property parallel to and close to their northern boundary.
(b) The trees were planted 4.5 years ago, while the applicants' extension was being constructed.
(c) The trees have grown to their current height of five to seven metres, and higher, since that time.
(d) The trees are not protected by Council's Tree Management controls under its Development Control Plan.
(g) The bamboo is likely to make a minor contribution to biodiversity.
(i) The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity.
(k) The bamboo plants can normally be regularly pruned without unduly affecting their health or function. Pruning may result in thicker growth, and thus enhance the hedge's utility for the respondents.
(l) Being higher up the hill, and on the upper level, the applicants' veranda and rear living area overlooks the respondent's rear yard, and the hedge contributes significantly to providing privacy for the respondent. It also adds to garden design and contributes to the amenity value of the garden as a sanctuary for Mrs Kalantzis.
(m) Though there are other trees in both the Kalantzis' rear yard, and their rear neighbours' property, which would also restrict the applicants' view, they are relatively small. In the absence of the bamboo, they would frame the wide ocean views on either side, rather than block them entirely.
(n) Regardless of the pruning agreement organised through the CJC mediation, the parties remain at an impasse, and no pruning has been undertaken. The wire initially installed by the respondent to hold the bamboo back from hitting the gutters is not achieving this function.
(p) The bamboo is evergreen.
(r) The obstructed view is from a living room and adjacent veranda, and the view is almost entirely restricted by the hedge.

In summary, pruning of section two of the hedge will be ordered so the ocean views are regained for the applicants, while retaining most of the hedge's benefits of privacy and landscape amenity for Mrs Kalantzis. This will result in little loss of amenity for the respondent, and significant benefit for the applicants.
Applying Tenacity to section one of the hedge, the main view restrictions are those into and across the Kalantzis' rear yard to district views beyond. The impact of this restriction for the whole of the property is, at best, moderate, particularly relative to the severe impact made by section two of the hedge. I am not convinced that the obstruction of the view by section one of the hedge is severe, and therefore, s 14E(2)(a)(ii) of the Act is not satisfied.
Although section one of the hedge has failed to engage Part 2A of the Act, the trees comprising it may satisfy the requirements of s 10(2)(a) of Part 2, which states that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property.

Jurisdictional requirements - Part 2

With respect to s 7, 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 this Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. The parties exchanged correspondence, and engaged in CJC mediation culminating in a written agreement, notwithstanding that no meaningful action has transpired to resolve the dispute.
The next major test that is posed, by s 10(2) of the 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.
Mr and Mrs Powell submitted that the problem is the bamboo's height, as many culms are growing above the gutter level by more than a metre. They claim that the bamboo bashes against the gutter in the wind, causing loud noise and vibration, and has and/or will damage gutter clips. The applicants seek the trimming and maintenance of the "bamboo hedge to an acceptable height to stop it hitting house and dislodging the gutter fastenings".
Ms Kalantzis stressed the importance of retaining the bamboo to protect her families' privacy, particularly in their rear yard, and upstairs east facing family room. She proposed installing additional wires to hold the bamboo back from the house, and for periodic maintenance to the height which obscures the applicants' dwelling. On page 8 of her Submission, Ms Kalantzis notes: "We maintain that the bamboo can be pruned and maintained at a point equal to the ridge-line of the Applicants roofline any shorter than that is not acceptable."
Ms Kalantzis cited Bailey v Gould [2011] NSWLEC 1062 (Bailey) at [13], which assessed previous damage to a fence, sewer vent, and drying linen as either not, or insufficiently related to the tree, so as to be considered sufficiently "minor and indeed is so de minimis as not to warrant our intervention." The circumstances in Bailey are quite different to this matter, where the damage is current, and likely to worsen in the near future without intervention. With respect to this question, consideration should also be given to Ward v Glasson [2012] NSWLEC 1350, where Commissioner Fakes notes at [57]: "Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) but it can be relevant in determining what orders, if any, should be made."
On page four of her Submission, Ms Kalantzis also cited three cases "in consideration to the claim of injury", but as the applicants made no claim related to injury, these cases are not relevant to these proceedings, and will not be considered.
The Powell's final submission was a rejection of the proposed 'poles and wires' solution to hold the bamboo back from the roof, and they suggested that it would have to include wires up towards gutter height to be effective. The existing wire installation is not achieving its purpose, and I concur that a taller version may also be ineffective. In any case, Ms Kalantzis has had ample time and opportunity to install an improved structure, but has failed to do so.
With the arboricultural expertise that I bring to the Court, I am not convinced that the bamboo has reached maturity. It is well established but is likely to grow around one metre taller, and more dense, with the likelihood of strong growth arching northward towards the sun, and the applicants' dwelling. I do not accept Ms Kalantzis' claims, on page 5 of her Submission, that the bamboo is 1.5 metres from the boundary and mostly upright, and that it is, except during rare heavy winds, unlikely to hit and damage the applicants' gutter.
The bamboo is clearly much closer to the roof, and, particularly when younger, the long culms are arched and flexible, and move readily in the wind. Based on the evidence adduced, I am satisfied that the trees concerned are likely, in the near future, to cause damage to the applicants' property. Based on guidance from Yang v Scerri [2007] NSWLEC 592, the near future is deemed by 'rule of thumb' to be 12 months.
The question posed, by s 10(2) of the Act, whether the bamboo has caused any damage, is causing any damage or is likely to cause any damage in the immediate future, or pose any risk of injury to persons, has therefore been satisfied, and the Part 2 application is granted.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Act. Factors already considered in s 14F will not be duplicated.

(b2) Bamboo plants can normally be regularly pruned to maintain height without noticeable impact on their health and function. Bushier growth normally develops on the stems below the pruning cuts, potentially enhancing the respondent's privacy.
(b3) The trees contribute significantly to providing privacy for the respondent, particularly in the rear yard, and upstairs family room. They also add to garden design and the amenity value of the garden.
(c) There is nothing other than the bamboo that is likely in the near future to cause damage to the applicants' property. Tension between the parties has led to inaction by the applicants with respect to pruning the long culms currently growing near and above the gutters.

Conclusion

Though the damage to the gutters may seem minor to Mrs Kalantzis, it is likely to worsen until intervention occurs with the hedge. The benefits the hedge provides will not be much affected, as long as a pruning programme is employed which maintains the screening benefit the hedge provides for the respondent, while clearing the bamboo from the applicants' roofline.
Though Ms Kalantzis strongly resisted pruning of the bamboo below the applicants' roofline, so as not to expose their dwelling, this is not a realistic expectation, whereas privacy is an important consideration, and in the main, it can been retained.
The agreement organised through CJC mediation has apparently not provided functional remedies, and some conditions appear unevenly skewed in satisfaction of the respondent's expectations. This agreement shall be set aside.
When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention in this case. Mrs Kalantzis has had ample time and opportunity to genuinely address her neighbour's reasonable concerns, but has chosen not to.

Orders

As a consequence of the forgoing, the orders of the Court are: 1. The application is granted. 2. Prune section two of the bamboo hedge growing inside the respondent's northern boundary to a height level with a point 300 mm above the applicants' veranda balustrade. This hedge height is to be uniform from the eastern property boundary to a south-facing line perpendicular with the metal veranda post, second from the eastern end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants' land. 3. Prune section one of the bamboo hedge growing inside the respondent's northern boundary to a height level with a point 700 mm above the applicants' veranda balustrade. This hedge height is to be uniform from to the line perpendicular with the metal veranda post, second from the eastern end down to where it finishes at the western end. The initial pruning is to occur within 30 days of these orders, and that height is to be maintained by pruning twice each year, once in mid-spring, and once in mid-autumn. This is to include pruning of bamboo protruding over the boundary into the applicants' land. 4. Any corms growing into the applicants' property in the interim between this bi-annual maintenance can be removed by the applicants, provided that the pruning location is within their property. All pruning works shall comply with the Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. 5. The applicants and respondent are to provide all reasonable access to one another's property for the purpose of complying with these orders on 3 days written notice. 6. The respondent is to pay the cost of these works.

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 June 2019

Powell v Kalantzis

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (6)