Qian v Sandig - [2024] NSWLEC 1137 - NSWLEC 2023 case summary — Zoe

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Qian v Sandig

[2024] NSWLEC 1137

Land and Environment Court (NSW)|2023-12-08

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-12-08

Catchwords

[2008] NSWLEC 152 Smith v Zhang [2011] NSWLEC 29 Tenacity Consulting v Waringah (2004) LGERA 23

Source

Original judgment source is linked above.

Catchwords

[2008] NSWLEC 152 Smith v Zhang [2011] NSWLEC 29 Tenacity Consulting v Waringah (2004) LGERA 23

Judgment (55 paragraphs)

[1]

Background

COMMISSIONER: Pierre Qian and Ruonan Zhang (the applicants) bought their St Ives Chase property on 1 February 2021 and moved in soon afterwards. Their neighbour to the south, David Sandig (the respondent), owns two adjoining lots (Lot 3 and Lot 4), one of which (Lot 4) includes the dwelling where he lives with his family. Mr Sandig's Lot 3 shares a common boundary with the respondents. Mr Sandig planted bamboo along parts of his northern boundaries in 2013 and 2015 for screening and privacy and to reduce the visual bulk of the applicants' 2-storey dwelling to his north.
The applicants and the respondent swapped emails about noise issues arising from the applicants' air-conditioner and pool pump. In an email of 3 May 2022, the applicants also raised issues they were experiencing with the respondent's bamboo, namely that bamboo was hitting their dwelling and blocking light to their dwelling. In subsequent emails they continued raising these issues. Although Mr Sandig removed some bamboo nearest the fence, the applicants found the problems persisted.
In February 2023, the applicants noticed damage to their dwelling's external cladding. They thought the damage was caused by Mr Sandig's bamboo. They sent him photographs and again asked him to take action to address the issues raised previously. They repaired the damage at a cost of $2,200. Mr Sandig undertook some further removal of bamboo near the fence. Despite this, and despite sending further emails, the applicants found the issues were ongoing. On 30 August 2023 Mr Qian and Ms Zhang filed an application with the Court. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), they seek orders for Mr Sandig's bamboo to be maintained at a height of 4 metres to prevent further damage to their dwelling, and for a root barrier to be installed to prevent bamboo damaging their stormwater pipe. Pursuant to s 14B (Pt 2A) of the Trees Act, they seek orders for the bamboo to be maintained at a height of 4 metres to prevent it obstructing sunlight to, and views from, their dwelling.

[3]

Whether land is adjoining

Under both Pts 2 and 2A of the Trees Act, an applicant may only seek orders for trees that are situated on land that adjoins the applicant's land (ss 7 and 14B respectively).
The north-south boundary separating Mr Sandig's two lots appears to meet his northern boundary at the south-eastern corner of the applicants' property. Mr Swain's diagram shows the junction is slightly to the east of the applicants' south-eastern corner, in which case the respondent's Lot 4 would not touch the applicants' land. Mr Swain has not referenced the source for the property layer of his plan. The NSW Planning Portal Spatial Viewer (viewed 8 March 2023) shows the boundaries of four properties (the respondent's two lots, the applicants' lot and the neighbouring property east of the applicants) all meet at one point, as shown in the snip below that I have marked up. Figure 2. Excerpt of NSW Planning Portal Spatial Viewer with my mark-up.
The applicants' property is joined to the respondent's Lot 4 at one point. In Cavalier v Young [2011] NSWLEC 1080, the Court held that land joined only by a corner post is adjoining land for the purpose of the Trees Act. I find that both the respondent's lots adjoin the applicants' land.
Should the respondent's Lot 4 and the applicants' land not touch at their corners, I still consider the land adjoining. Other cases have considered the meaning of 'adjoining' in different legal contexts, and what might be considered adjoining land despite being physically separated by other land, such as common property or a road: see Dive v Lin [2017] NSWLEC 153. The respondent's garden spans across Lots 3 and 4 with no marking of the boundary between the two lots. For all intents and purposes, the respondent is using the land as a single property. If Lot 4 is not touching the applicants' land, it is separated from it by only a small margin of the respondent's own garden. In the circumstances, I consider all of the respondent's land to be land that adjoins the applicants' land.
Mr Farrell made no submissions on whether all of the respondent's land adjoins the applicants' land. The issue did not arise during the hearing, but for completeness I have dealt with it here. Mr Farrell submitted that, for reasons unrelated to that of Mr Sandig's two separate lots, the Court could not be satisfied that the trees are situated on land adjoining the applicants' land, and the application should be refused.
Mr Farrell submitted that a considerable portion of the bamboo might be on the applicants' own land. Mr Farrell relied upon an image taken from the State Government's Spatial Information Exchange software (https://maps.six.nsw.gov.au/). The picture Mr Farrell presented to the Court shows an aerial image layer included with the cadastral boundary layer. Most of the bamboo hedge in the aerial image appears to the north of the line that marks the common boundary between the properties. Mr Farrell suggested that the hedge is situated at least partly on the applicants' land. Mr Farrell submitted that the Court must be satisfied that the tree is situated wholly or principally on the respondent's land, as per s 4(3) of the Trees Act. The onus is on the applicant, he argued, to demonstrate this via a survey plan that accurately depicts the outline of the base of the tree and its location relative to the boundary, as per the example in Awad v Hardie (No 2) [2010] NSWLEC 1258 (Awad). The respondent filed no evidence addressing this issue before the hearing.
To my mind, this element of the respondent's submissions is a distraction from the real issues at hand. This issue was not raised with the applicants before the hearing. It does nothing to resolve the real issues in this dispute. And it is misguided, for three reasons.
First and foremost, when cadastral maps are overlaid on aerial imagery, the alignment of the aerial imagery is imperfect. Aerial imagery is useful, but cannot be relied upon. Each image taken from an aircraft covers an area, but only the point directly beneath the aircraft at the time of image capture is in vertical alignment. This explains why the faces of vertical walls can sometimes be seen in aerial images. Then, despite the best efforts of those who overlay the aerial images, the accuracy of georeferencing varies throughout the image. On the SIX Maps website, the distance from the common boundary to the nearest point of the applicants' dwelling can be measured at 3.0 metres. On the survey plan within Mr Swain's report, the setback is 1.7 metres. If the SIX Maps aerial image relied upon by Mr Farrell was accurate, the neighbour to the respondent's east would be trespassing on their northern neighbour's property whenever they swim in the northern part of their own pool.
Secondly, the aerial image supports the applicants' submission that the bamboo leans across the boundary and hits their dwelling. At the time the image was captured, foliage reached to their walls, despite the clear path on their property between their dwelling and the common boundary. It is the tops of the bamboo seen in the image, not the bases where the bamboo is planted in the ground.
And thirdly, there was no reason during the site inspection to doubt that the fence dividing the properties was anywhere other than roughly on the common boundary. The fence was in line with adjacent boundary fences and appeared to be at the same setback from the applicants' dwelling as shown on Mr Swain's plan. By way of his own affidavit, Mr Sandig stated that the trees are located on his own property (par 6), that he and his wife planted them there (pars 17 and 18), and that he has never seen bamboo shoots from their bamboo growing outside his property (par 26). Apart from a few culms that have shot up on the applicants' side of the fence, as per their claim, each clump of bamboo is entirely or principally located on the respondent's land.
While the Court has, in several instances, directed an applicant to demonstrate via a survey that a tree is principally situated on adjoining land, as it did in Awad, this would only be done where the Court has some doubt about the tree's location relative to the common boundary: see Chan v McDonald [2018] NSWLEC 1692 at [10]. No such uncertainty exists in these proceedings.
I find that all the bamboo is situated on land that is adjoining the applicants' land. Therefore, they can apply to the Court for orders pursuant to both ss 7 and 14B of the Trees Act, as they have done.

[6]

Evidence and submissions

The applicants discovered a section of external cladding dislodged and fallen from their dwelling on 26 February 2023 (the damage). They submitted that the respondent's bamboo struck their dwelling and caused the damage. They submitted that bamboo had been repeatedly striking their dwelling for some time. The noise had been bothering them since early 2022. They submitted that there was no other likely cause of the damage.
The respondent submitted that his bamboo did not cause the damage. The respondent submitted that the damage was more likely caused during works to the applicants' property. The respondent relied on the reports of Mr Cunniffe and Mr Swain.
Mr Swain concluded on p 5 of his report: "With regards to past damage to the parapet I am not of the opinion that the tips of the bamboo have enough strength, mass or density to cause the damage depicted in the images provided."
Mr Swain's limited discussion that led to this conclusion considered that a bamboo culm is narrower and more flexible at its tip than at its base.
The applicants submitted that Mr Swain inspected the bamboo after the respondent had removed culms nearest the boundary, so he did not see the bamboo's potential (and realised) impacts to their dwelling as it was in February 2023.
Mr Cunniffe wrote at par 6 of his Executive Summary: "I have been provided with a photograph of a small section of the pelmet on the southwestern elevation of the Applicant's dwelling. The photograph shows a piece of fibre cement used to patch a broken piece of the pelmet. The patch has been broken off. Sarking is protruding from the hole suggesting that an object on the inside of the pelmet has pierced the parapet and has been patched and painted the same colour as the wall. This appears to be pre-existing damage."
Mr Cunniffe noted that 'substantial works' had been carried out on the applicants' roof. The works to which he referred were the applicants' installation of solar panels on their roof. Mr Cunniffe pointed out that the solar panels were not present in aerial images taken at the time the applicants purchased their dwelling.
Having observed the respondent's bamboo and the applicants' dwelling (from within the respondent's property), Mr Cunniffe formed an opinion that it was highly improbable that the tops of the bamboo could have caused the damage. Mr Cunniffe concluded (at par 11 of his Executive Summary): "I am of the opinion that the most likely cause of the damage to the pelmet, being an object piercing the parapet from the inside is construction activity when the works were carried out."
It became clear during the respondent's submissions that Mr Farrell and I reached different interpretations of Mr Cunniffe's findings. I thought Mr Cunniffe was referring to an earlier unrecorded damage incident caused 'from the inside', resulting in some patch repair. Mr Farrell thought Mr Cunniffe was identifying the cause of the February 2023 damage. Mr Cunniffe provided clarification via oral evidence over the phone during the hearing. Mr Cunniffe explained that, in his opinion, the nature of the dislodged section indicates an earlier damage incident that required patching. He thought the earlier damage was caused by a force from within the dwelling's structure and that the damage was then patched. He thought an external force, which he could not identify, then dislodged the patched section in February 2023. Asked by Mr Farrell how likely it was that bamboo dislodged the patch, Mr Cunniffe answered that he has bamboo on his own property. Based on his experience of having his own bamboo, and on his observations of the respondent's bamboo, he thought the bamboo would not have the force to dislodge the patch. The applicants pointed out that the respondent removed bamboo culms prior to Mr Cunniffe's inspection, so Mr Cunniffe did not observe or understand the bamboo's proximity to their dwelling or the force with which it struck their dwelling. The applicants provided video footage of the bamboo striking their dwelling. Mr Cunniffe suggested that the patch was dislodged during the applicants' installation of solar panels, which would have required equipment and parts to be taken up to the roof. If not done carefully, he posited, parts could strike the wall. He suggested this was possible, but not likely.
Mr Farrell submitted that Mr Cunniffe's evidence should be accepted as he is the only expert in building condition in these proceedings. He argued that the onus is on the applicants to demonstrate causation, and they have not done this to the extent required by s 10(2) of the Trees Act. If the applicants were so sure of the cause of damage, Mr Farrell wondered why they did not swear an affidavit. Mr Farrell pointed out that no other parts of the applicants' dwelling have been damaged by bamboo. Mr Farrell referred to Craig J's finding in Smith v Zhang [2011] NSWLEC 29 that s 10(2) of the Trees Act obliges the Court to be satisfied of the causal nexus between the trees and the damage. He suggested this was not possible in these proceedings.
If bamboo did not damage the applicants' dwelling, Mr Farrell suggested that the applicants gave neither the respondent nor the Court any reason to remove bamboo just because it was hitting their dwelling. He took the Court to Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) where, at [171], Preston CJ found that mere annoyance, such as the sound of bamboo hitting the applicants' dwelling in these proceedings, is not 'damage' to the applicants' property.
Mr Farrell also submitted that, if bamboo did strike the dwelling and dislodge the fallen part, this resulted from a weather event. In that scenario, according to Mr Farrell's reasoning, the damage would be a consequence not of a tree, but of the weather.
Mr Farrell argued that, if bamboo damaged the applicants' dwelling, the bamboo culm that caused damage has not been identified, and has been removed.
The applicants submitted that the bamboo is likely to cause further damage to their property. Just as its culms have already caused damage, similar damage is likely in future as the bamboo still reaches their dwelling during winds. They also fear that the bamboo's roots, which have spread across the boundary in the past, as demonstrated by culms shooting up on their side of the boundary fence, will damage the sewer pipe that runs beneath their path near the common boundary. Mr Cunniffe thought this was unlikely given the presence of the applicants' pathway, which, in his opinion, would make lateral growth of bamboo roots impossible.

[7]

Findings

Both Mr Swain and Mr Cunniffe inspected the bamboo in November 2023. The respondent removed bamboo culms between February and November 2023, so neither of them saw the bamboo when it was closer to the applicants' dwelling. Their conclusions regarding the bamboo's ability to damage the dwelling are speculative. The applicants' video footage shows the bamboo striking their dwelling with force during strong winds. I am most persuaded by the video evidence, which to me shows that the bamboo struck the dwelling with sufficient force to dislodge the part that fell. I accept, and the applicants do not dispute, that the section of cladding that fell may have included a patch over earlier damage. This may have allowed it to be dislodged by a force that otherwise would not cause damage. Nevertheless, if not struck by something such as the bamboo, it was unlikely to come loose.
Solar panels were installed on the applicants' roof during 2021, so the section of cladding was not dislodged from their dwelling during those works. They noticed the damage in February 2023. The evidence before the Court does not suggest that works to the applicants' property were likely to cause the damage, whereas the applicants' video evidence persuades me that bamboo was most likely to cause the damage.
Turning to Mr Farrell's somewhat specious submission that weather would be the cause of damage if wind forced the bamboo to strike the dwelling, I reject this. If wind blew the roof off the dwelling, weather would be the cause of damage. If a tree blows over in a storm and a dwelling is damaged, the failure of the tree's root plate might be caused by the weather, but the damage to the dwelling is caused by the tree. Preston CJ found in Robson that the tree that fell during "a weekend of wild, windy and wet weather" (par 1) caused damage to the applicant's property when it fell on her dwelling (par 220).
Regarding the specific culm that caused damage, that culm together with other culms formed a clump of bamboo that is best regarded as 'the tree'. Removing a single culm is akin to removing a branch from a tree. There is no need for the applicant to identify the culm that caused the damage. I am satisfied that the respondent's bamboo caused the damage. Remaining bamboo that can hit their dwelling is likely to cause damage in the near future.
Apart from demonstrating that a sewer pipe on their property is close to the common boundary, and therefore close to the bamboo, and that bamboo roots have spread crossed the boundary, the applicants provided no evidence that would satisfy the Court that bamboo is likely to damage the pipe in the near future. I reject Mr Cunniffe's opinion on whether the applicants' path would prevent bamboo roots spreading laterally, as tree root growth is not his area of expertise.
I find the following: 1. Prior to the February 2023 damage, and before the applicants purchased their property, a section of cladding on the applicants' dwelling was patched where it had been damaged. 2. The respondent's bamboo struck the applicants' dwelling during winds. The applicants informed the respondent that his bamboo was striking their dwelling. Despite the respondent's removal of some bamboo culms nearest the boundary, the bamboo continued to strike the applicants' dwelling. That is, the respondent did not take sufficient action to prevent the damage. 3. Either in a single event, or by repeatedly striking the same section, bamboo dislodged the section of cladding that had been patched earlier. 4. If not for the bamboo striking the dwelling, the patched section of cladding was unlikely to be dislodged. 5. Repairing the damage cost the applicants $2,200. If not for the bamboo causing the damage, they were unlikely to have incurred this expense. 6. Bamboo culms remain close enough to the dwelling to cause further damage during strong winds. 7. I cannot be satisfied that the bamboo's roots are likely to damage the applicants' property.

[8]

Relevant matters considered

As I am satisfied that the respondent's bamboo has damaged the applicants' property, I can make orders in the Pt 2 application: s 10(2)(a) of the Trees Act. The Court can make orders as it sees fit to remedy, restrain or prevent damage to property as a consequence of the bamboo: s 9 of the Trees Act. Before determining any orders, the Court must consider relevant matters at s 12.
The respondent's bamboo is close to the common boundary. It overhangs the boundary and strikes the applicants' dwelling during winds. The bamboo spreads quickly, so even when culms nearest the boundary are removed it is likely to rapidly recolonise the area.
The Ku-ring-gai Development Control Plan 2023 (the DCP) defines prescribed trees and vegetation to be protected to include: 'trees', 'other vegetation', and 'native vegetation'. The respondent's bamboo does not fall within the definition of either 'other vegetation' or 'native vegetation'. Under the DCP, 'tree' means: "i) any perennial plant with at least one self-supporting woody, fibrous stem, whether native or exotic, of 5 metres or more in height; and ii) any plant that has a trunk diameter of 150mm or more measured at ground level."
Mr Swain did not believe that the respondent's bamboo was a prescribed tree because it does not have a trunk of 150 mm or more. However, that is only one of the two definitions of a prescribed tree. The inclusion of "any plant" at the beginning of the second arm at (ii) above indicates that each definition stands alone, rather than requiring that a plant meets both arms of the definition to be a prescribed tree. The bamboo is a perennial plant more than 5 metres tall with at least one self-supporting woody, fibrous stem. The DCP includes no exemption for bamboo. I understand, therefore, that the respondent's bamboo is prescribed vegetation within the DCP. Ordinarily, clearing or removing a substantial part of the bamboo would require consent from Ku-ring-gai Council (Council). Minor pruning of branches (or culms) not more than 50 mm in diameter would be exempt. Despite vegetation controls under the DCP, orders made by the Court would not require consent: s 6(3) of the Trees Act.
The applicants proposed that the respondent should maintain the bamboo at a height of 4 metres. Apart from addressing their concerns under their Pt 2A application, they submitted that this would prevent the bamboo striking their dwelling. Mr Swain wrote (p 4 of his report): "The preferred method of maintenance from bamboo is to remove whole culms at the base. In this way it can be assured that the trimmed culm will not lean further over in future. If the culm was trimmed to 4m it may still lean over in the future."
The respondent's approach to date has been to remove culms at the base, rather than pruning them to 4 metres or another height. The bamboo will tolerate either method of control. Removing culms at ground level is a less onerous task than cutting them at a height 4 metres.
The bamboo provides ecosystem services, including cooling and shading, but these are not significant. The bamboo does not contribute to public amenity in any noteworthy way. Its main benefit is to the respondent, who planted the bamboo for privacy and screening. It minimises overlooking from the applicants' property into the respondent's garden and dwelling, and screens the visual bulk of the applicants' dwelling from the respondent's property. The respondent has a large garden with enough space to plant screening vegetation away from the boundary. The location chosen for planting the bamboo benefits the respondent but creates issues for the applicants. Planting further from the boundary would provide the benefits without the negative impacts.
The applicants took steps to prevent the damage. They wrote to the respondent, telling him that his bamboo was hitting their dwelling. They obtained advice and quotes for pruning the bamboo to a height of 4 metres. Further preventative action, other than applying to the Court, was beyond their control.
The respondent removed some culms near the boundary, but insufficient to prevent bamboo hitting the applicants' dwelling. He did not respond to some of the applicants' correspondence.

[11]

Evidence and submissions

A large window in the southern wall of the applicants' dwelling provides light to, and views from, their stairwell. Most of the window faces approximately south, with a small section facing approximately west. The applicants claim that the respondent's bamboo severely obstructs sunlight to this window. They conceded that the impact is mostly to ambient light, rather than direct sunlight. They provided no shadow diagrams. The respondent submitted that the Court should only consider the obstruction of direct sunlight, and that the obstruction of direct sunlight here cannot be considered severe.
In Drewett v Best [2010] NSWLEC 1305, the Court found at [17] that 'sunlight' at s 14E(2)(a)(i) refers to direct sunlight. The south-facing part of the window would not receive any significant amount of direct sunlight; the west-facing part might receive some late afternoon sunlight during summer only. The bamboo reduced ambient light within the stairwell, especially before the respondent removed culms nearest the boundary, but it did not severely obstruct direct sunlight to the window.
From the stairwell and the landing at its top, the window provides a southern outlook to the suburban landscape. The window is higher than the respondent's dwelling, so the vegetated landscape is visible above the respondent's roof, or would be if not for the respondent's bamboo.
The applicants submitted that the stairwell and landing at its top provide a frequently used throughfare, from where they enjoyed the southern view when they first purchased their property, at which time the bamboo was shorter.
The respondent submitted that the Court should rely on the view-sharing principle in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 (Tenacity), as it has in other Pt 2A applications. The principle is found at [25]-[29] of Tenacity: "[25] The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. [26] The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. [27] The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. [28] The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. [29] The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."
With regards to the first step of Tenacity, Mr Farrell submitted that the view contains no iconic features, but is a pleasant bushland outlook. On these grounds, he argued, the application does not pass the first step.
With regards to the second step, Mr Farrell submitted that the view is seen only when passing through a trafficable area, not from any habitable room. He argued that the application does not pass the second step.
At the third step, Mr Farrell submitted that the bushland view is only partially obscured by bamboo shoots, but remains visible so the impact is not total. He argued that the application does not pass the third step either.
Returning to s 14E(2)(a)(ii) of the Trees Act, the test for a view obstruction is only this: the Court cannot make orders unless it is satisfied that the trees (here, the respondent's bamboo) are severely obstructing a view from the applicants' dwelling. This aligns only with Tenacity's step 3 in part. The Court's role at s 10(2)(a)(ii) is not to conduct a view-sharing analysis; rather it is to assess if the trees are severely obstructing a view from a dwelling. It does not extend to that part of Tenacity's step 3 where: "This should be done for the whole of the property, not just for the view that is affected." Nor does it extend to step 1 or step 2. The Court's role at s 10(2)(a)(ii) aligns with the third step of Tenacity only where it states: "The third step is to assess the extent of the impact" and "The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating." The remainder of step 3 and the other steps provide useful guidance when considering relevant matters at s 14F of the Trees Act, and then ultimately at s 14E(2)(b) when weighing the interests of each party and the impacts of making orders.
The applicants submitted that the bamboo severely obstructs two other views. To the west of the stairwell, they have an ensuite bathroom, from where they said the southward view is obstructed by bamboo. On the western side of the applicants' dwelling is a small balcony that faces northward, overlooking their swimming pool. The applicants asked me to stand at the balcony's western end, from where I could lean beyond the railing a little to look to the southwest along the side wall of their dwelling, and where the bamboo, almost 15 metres from the balcony, obstructs the view of the distant landscape. The applicants submitted that the obstruction is severe. The respondent submitted that the bamboo's obstruction of a view from the bathroom or the balcony is so minor that it would not affect the applicants.

[13]

Relevant matters considered

Having found that the bamboo severely obstructs the view from the stairwell, I must also be satisfied, at s 14E(2)(b), that "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." This prompts consideration of the matters at s 14F, which include elements of the steps in the Tenacity principle discussed above.
The bamboo is planted close to, and overhangs, the common boundary, such that its foliage formed a dense screen in front of the applicants' stairwell window. The obstruction was more severe before the respondent removed the bamboo culms closest to the fence.
The bamboo was present, and was more than 2.5 metres tall, when the applicants purchased their property. The applicants submitted that the bamboo was at approximately the bottom of the stairwell window when they purchased in February 2021. Mr Farrell submitted that the bamboo was already mature in February 2021, so was the same height then as it was at the time the applicants commenced these proceedings. Mr Swain expressed his opinion that the bamboo was already at its mature height when the applicants purchased in 2021. Photographs from 2018, annexed to Mr Sandig's affidavit, show sections of the bamboo reaching almost to the applicants' roof. However, for whatever reason, the applicants' photograph of November 2021 (copied above at [67]) clearly shows the view was not then severely obstructed. It shows new culms had recently grown up into the view, but had not yet thickened and formed the screen that they subsequently formed. It suggests the view was not obstructed at all, or only to an insignificant degree, when the applicants purchased their property in February 2021. The applicants enjoyed the view, as they stated. Mr Farrell argued that, if this was so, it was only a temporary state of affairs that came between the presence of trees on the respondent's property, removed some years earlier, and the establishment of the bamboo. The respondent always aimed to maintain a screen to the applicants' dwelling.
As I found earlier, it seems that removing the bamboo would require Council's consent, but pruning culms not more than 50 mm in diameter would be exempt from this requirement.
The bamboo's primary benefits are to the respondent, by providing a high wall of foliage that minimises overlooking of his property and by screening the bulk of the applicants' dwelling.
As in their Pt 2 application, the applicants proposed that the respondent maintains the bamboo at a height of 4 metres to restore and maintain their view. They obtained quotes for this. As before, Mr Swain thought the preferred maintenance method was to remove culms at the base rather than prune them to 4 metres. The bamboo would tolerate either method of maintenance. Considering the history of this dispute, maintaining the hedge by pruning it is more likely to leave the matter open to ongoing disagreements regarding its height and its view obstruction.
Returning to the Tenacity principle, I consider the following matters are relevant. The view from the stairwell might not include iconic elements, or might not even be a high-value view, but it is a pleasant outlook from the applicants' dwelling. The obstructed view is from a trafficable area, being the stairwell and the landing above the stairs. I accept that the applicants might pause here and enjoy the outlook; children might play on the landing, as shown in a photograph. Nevertheless, and as put forward by the respondent, it seems to me that when the applicants' overall dwelling is considered, the impact of this view obstruction would not significantly diminish their enjoyment of their property. The time spent by their family at the stairwell is minimal when compared with time spent in living areas, bedrooms and outdoor areas. The dwelling's living areas have large windows allowing ample outlook.

[25]

It became clear during the respondent's submissions that Mr Farrell and I reached different interpretations of Mr Cunniffe's findings. I thought Mr Cunniffe was referring to an earlier unrecorded damage incident caused 'from the inside', resulting in some patch repair. Mr Farrell thought Mr Cunniffe was identifying the cause of the February 2023 damage. Mr Cunniffe provided clarification via oral evidence over the phone during the hearing. Mr Cunniffe explained that, in his opinion, the nature of the dislodged section indicates an earlier damage incident that required patching. He thought the earlier damage was caused by a force from within the dwelling's structure and that the damage was then patched. He thought an external force, which he could not identify, then dislodged the patched section in February 2023. Asked by Mr Farrell how likely it was that bamboo dislodged the patch, Mr Cunniffe answered that he has bamboo on his own property. Based on his experience of having his own bamboo, and on his observations of the respondent's bamboo, he thought the bamboo would not have the force to dislodge the patch. The applicants pointed out that the respondent removed bamboo culms prior to Mr Cunniffe's inspection, so Mr Cunniffe did not observe or understand the bamboo's proximity to their dwelling or the force with which it struck their dwelling. The applicants provided video footage of the bamboo striking their dwelling. Mr Cunniffe suggested that the patch was dislodged during the applicants' installation of solar panels, which would have required equipment and parts to be taken up to the roof. If not done carefully, he posited, parts could strike the wall. He suggested this was possible, but not likely.
Mr Farrell submitted that Mr Cunniffe's evidence should be accepted as he is the only expert in building condition in these proceedings. He argued that the onus is on the applicants to demonstrate causation, and they have not done this to the extent required by s 10(2) of the Trees Act. If the applicants were so sure of the cause of damage, Mr Farrell wondered why they did not swear an affidavit. Mr Farrell pointed out that no other parts of the applicants' dwelling have been damaged by bamboo. Mr Farrell referred to Craig J's finding in Smith v Zhang [2011] NSWLEC 29 that s 10(2) of the Trees Act obliges the Court to be satisfied of the causal nexus between the trees and the damage. He suggested this was not possible in these proceedings.
If bamboo did not damage the applicants' dwelling, Mr Farrell suggested that the applicants gave neither the respondent nor the Court any reason to remove bamboo just because it was hitting their dwelling. He took the Court to Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) where, at [171], Preston CJ found that mere annoyance, such as the sound of bamboo hitting the applicants' dwelling in these proceedings, is not 'damage' to the applicants' property.
Mr Farrell also submitted that, if bamboo did strike the dwelling and dislodge the fallen part, this resulted from a weather event. In that scenario, according to Mr Farrell's reasoning, the damage would be a consequence not of a tree, but of the weather.
Mr Farrell argued that, if bamboo damaged the applicants' dwelling, the bamboo culm that caused damage has not been identified, and has been removed.
The applicants submitted that the bamboo is likely to cause further damage to their property. Just as its culms have already caused damage, similar damage is likely in future as the bamboo still reaches their dwelling during winds. They also fear that the bamboo's roots, which have spread across the boundary in the past, as demonstrated by culms shooting up on their side of the boundary fence, will damage the sewer pipe that runs beneath their path near the common boundary. Mr Cunniffe thought this was unlikely given the presence of the applicants' pathway, which, in his opinion, would make lateral growth of bamboo roots impossible.

[26]

Both Mr Swain and Mr Cunniffe inspected the bamboo in November 2023. The respondent removed bamboo culms between February and November 2023, so neither of them saw the bamboo when it was closer to the applicants' dwelling. Their conclusions regarding the bamboo's ability to damage the dwelling are speculative. The applicants' video footage shows the bamboo striking their dwelling with force during strong winds. I am most persuaded by the video evidence, which to me shows that the bamboo struck the dwelling with sufficient force to dislodge the part that fell. I accept, and the applicants do not dispute, that the section of cladding that fell may have included a patch over earlier damage. This may have allowed it to be dislodged by a force that otherwise would not cause damage. Nevertheless, if not struck by something such as the bamboo, it was unlikely to come loose.
Solar panels were installed on the applicants' roof during 2021, so the section of cladding was not dislodged from their dwelling during those works. They noticed the damage in February 2023. The evidence before the Court does not suggest that works to the applicants' property were likely to cause the damage, whereas the applicants' video evidence persuades me that bamboo was most likely to cause the damage.
Turning to Mr Farrell's somewhat specious submission that weather would be the cause of damage if wind forced the bamboo to strike the dwelling, I reject this. If wind blew the roof off the dwelling, weather would be the cause of damage. If a tree blows over in a storm and a dwelling is damaged, the failure of the tree's root plate might be caused by the weather, but the damage to the dwelling is caused by the tree. Preston CJ found in Robson that the tree that fell during "a weekend of wild, windy and wet weather" (par 1) caused damage to the applicant's property when it fell on her dwelling (par 220).
Regarding the specific culm that caused damage, that culm together with other culms formed a clump of bamboo that is best regarded as 'the tree'. Removing a single culm is akin to removing a branch from a tree. There is no need for the applicant to identify the culm that caused the damage. I am satisfied that the respondent's bamboo caused the damage. Remaining bamboo that can hit their dwelling is likely to cause damage in the near future.
Apart from demonstrating that a sewer pipe on their property is close to the common boundary, and therefore close to the bamboo, and that bamboo roots have spread crossed the boundary, the applicants provided no evidence that would satisfy the Court that bamboo is likely to damage the pipe in the near future. I reject Mr Cunniffe's opinion on whether the applicants' path would prevent bamboo roots spreading laterally, as tree root growth is not his area of expertise.
I find the following:

[48]

With regards to the first step of Tenacity, Mr Farrell submitted that the view contains no iconic features, but is a pleasant bushland outlook. On these grounds, he argued, the application does not pass the first step.
With regards to the second step, Mr Farrell submitted that the view is seen only when passing through a trafficable area, not from any habitable room. He argued that the application does not pass the second step.
At the third step, Mr Farrell submitted that the bushland view is only partially obscured by bamboo shoots, but remains visible so the impact is not total. He argued that the application does not pass the third step either.
Returning to s 14E(2)(a)(ii) of the Trees Act, the test for a view obstruction is only this: the Court cannot make orders unless it is satisfied that the trees (here, the respondent's bamboo) are severely obstructing a view from the applicants' dwelling. This aligns only with Tenacity's step 3 in part. The Court's role at s 10(2)(a)(ii) is not to conduct a view-sharing analysis; rather it is to assess if the trees are severely obstructing a view from a dwelling. It does not extend to that part of Tenacity's step 3 where: "This should be done for the whole of the property, not just for the view that is affected." Nor does it extend to step 1 or step 2. The Court's role at s 10(2)(a)(ii) aligns with the third step of Tenacity only where it states: "The third step is to assess the extent of the impact" and "The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating." The remainder of step 3 and the other steps provide useful guidance when considering relevant matters at s 14F of the Trees Act, and then ultimately at s 14E(2)(b) when weighing the interests of each party and the impacts of making orders.
The applicants submitted that the bamboo severely obstructs two other views. To the west of the stairwell, they have an ensuite bathroom, from where they said the southward view is obstructed by bamboo. On the western side of the applicants' dwelling is a small balcony that faces northward, overlooking their swimming pool. The applicants asked me to stand at the balcony's western end, from where I could lean beyond the railing a little to look to the southwest along the side wall of their dwelling, and where the bamboo, almost 15 metres from the balcony, obstructs the view of the distant landscape. The applicants submitted that the obstruction is severe. The respondent submitted that the bamboo's obstruction of a view from the bathroom or the balcony is so minor that it would not affect the applicants.

[52]

Having found that the bamboo severely obstructs the view from the stairwell, I must also be satisfied, at s 14E(2)(b), that "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." This prompts consideration of the matters at s 14F, which include elements of the steps in the Tenacity principle discussed above.
The bamboo is planted close to, and overhangs, the common boundary, such that its foliage formed a dense screen in front of the applicants' stairwell window. The obstruction was more severe before the respondent removed the bamboo culms closest to the fence.
The bamboo was present, and was more than 2.5 metres tall, when the applicants purchased their property. The applicants submitted that the bamboo was at approximately the bottom of the stairwell window when they purchased in February 2021. Mr Farrell submitted that the bamboo was already mature in February 2021, so was the same height then as it was at the time the applicants commenced these proceedings. Mr Swain expressed his opinion that the bamboo was already at its mature height when the applicants purchased in 2021. Photographs from 2018, annexed to Mr Sandig's affidavit, show sections of the bamboo reaching almost to the applicants' roof. However, for whatever reason, the applicants' photograph of November 2021 (copied above at [67 ]) clearly shows the view was not then severely obstructed. It shows new culms had recently grown up into the view, but had not yet thickened and formed the screen that they subsequently formed. It suggests the view was not obstructed at all, or only to an insignificant degree, when the applicants purchased their property in February 2021. The applicants enjoyed the view, as they stated. Mr Farrell argued that, if this was so, it was only a temporary state of affairs that came between the presence of trees on the respondent's property, removed some years earlier, and the establishment of the bamboo. The respondent always aimed to maintain a screen to the applicants' dwelling.
As I found earlier, it seems that removing the bamboo would require Council's consent, but pruning culms not more than 50 mm in diameter would be exempt from this requirement.
The bamboo's primary benefits are to the respondent, by providing a high wall of foliage that minimises overlooking of his property and by screening the bulk of the applicants' dwelling.
As in their Pt 2 application, the applicants proposed that the respondent maintains the bamboo at a height of 4 metres to restore and maintain their view. They obtained quotes for this. As before, Mr Swain thought the preferred maintenance method was to remove culms at the base rather than prune them to 4 metres. The bamboo would tolerate either method of maintenance. Considering the history of this dispute, maintaining the hedge by pruning it is more likely to leave the matter open to ongoing disagreements regarding its height and its view obstruction.
Returning to the Tenacity principle, I consider the following matters are relevant. The view from the stairwell might not include iconic elements, or might not even be a high-value view, but it is a pleasant outlook from the applicants' dwelling. The obstructed view is from a trafficable area, being the stairwell and the landing above the stairs. I accept that the applicants might pause here and enjoy the outlook; children might play on the landing, as shown in a photograph. Nevertheless, and as put forward by the respondent, it seems to me that when the applicants' overall dwelling is considered, the impact of this view obstruction would not significantly diminish their enjoyment of their property. The time spent by their family at the stairwell is minimal when compared with time spent in living areas, bedrooms and outdoor areas. The dwelling's living areas have large windows allowing ample outlook.

Qian v Sandig

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