Solicitors:
Applicants: Hones Lawyers
File Number(s): 182509 of 2016
[2]
Judgment
COMMISSIONER: The applicants have applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking removal of bamboo from the respondents' property within 3m of the common boundary, and the payment, by the respondents, of $6,894.00 for rectification of damage to their property they contend has been caused by the bamboo.
The respondents' property is to the north of the applicants' property. Along part of the southern boundary of the respondents' property is a row of bamboo.
The applicants contend that the bamboo has caused damaged to their dwelling and their lawn and could cause damage to a drain and the fence. They also claim that the bamboo severely obstructs sunlight to windows of their dwelling.
[3]
The applicants' position
The applicants purchased their Warrawee property in March 2014. They commenced complying works in or about July 2014. In October 2014 Ku-ring-gai Council approved an addition to the western side of the existing dwelling. The applicants occupied their property in January 2015.
In or about June or July 2014, the applicants state that some small clumps of bamboo were observed above the boundary fence in the vicinity of the bathroom window on the northern wall of their dwelling. Mr Robertson, the first applicant, stated in oral evidence that in his opinion there was nothing resembling a dense hedge of bamboo on the respondents' property when the applicants purchased their property. It was later in the year when the extensive planting of bamboo became visible above the 1.8m high fence. The applicants state that they first raised concerns about the bamboo hedge with their neighbours in April or May 2015 as their clothesline, fixed to the northern wall, was in shade. According to the applicants, negotiations continued from that time until January 2016. Between July and December 2015 the applicants engaged Hones Lawyers and a number of experts to provide advice.
In March 2016 the applicants filed the Class 2 application with the Court.
The applicants' claim for damage under Part 2 includes:
Damage to the northern façade of the dwelling caused by the accumulation of mould, damp and moss;
Potential damage to the fence
Potential damage to a storm water drain that runs along their northern boundary and adjoins the dividing fence between the parties' properties.
Damage to the lawn caused by excessive shading.
The $6,894.00 claimed is the amount quoted to clean the northern brick wall.
The application under Part 2A is on the basis that the bamboo severely obstructs sunlight to the bathroom window on the northern wall and the west-facing windows of the master bedroom. The application claim form initially included other windows on the eastern façade as well as the north-facing windows of the new addition. Ms Hemmings, counsel for the applicants, informed me that only the bathroom and bedroom windows are now pressed.
[4]
The respondents' position
The respondents purchased their property in November 2010 and moved into it in February 2011. In May 2013 the respondents engaged Mr Peter Walsh, a landscaper, to plant row of 15 clumps of bamboo along part of their southern boundary (referred to as the 'eastern hedge'). A row of Camellias was planted to the north of the bamboo. The majority of the culms were more than 2.5m high when planted.
The bamboo was part of the overall landscape and garden design; the main purpose being to provide privacy between the two properties and to soften the visual impact of the brick wall on the northern side of the applicants' dwelling.
The respondents' property is elevated above the applicants' property; the respondents' two storey dwelling overlooks the applicants' property. The respondents' main outdoor recreation area adjoins and overlooks the applicants' new addition.
The respondents contend that the height of the dense foliage of the bamboo was well above 2.5m when the applicants purchased their property. In addition, there were taller shoots at the current height to which the hedge is now maintained. Photographs taken by the respondents and included in Exhibit 1 show the eastern hedge in August 2013, March 2014 and July 2014. They also rely on photographs taken by Tanner Kibble Denton Architects (TKD) included in a Statement of Heritage Impact dated July 2014 which accompanied the applicants' development application to council, as well as 'nearmap'™ images included in their arborist's report.
They state that by September 2014 the bamboo had sufficiently established to allow for pruning to its approximate current height.
The western extension of the bamboo was planted on 13 November 2014 in order to soften the visual impact of the applicants' extension and to provide privacy in the context of the significant change in use of that area from a former garage to the kitchen and dining room with full-length windows on the northern facade. The respondents contend that the western extension was planted in the very early stages of the construction of the applicants' renovations.
The respondents do not wish to remove the hedge and state that it is regularly maintained to its current height two to three times a year. They value the hedge for the privacy and amenity it affords their property. The respondents assert that the hedge limits light spill from the applicants' property and limits overviewing of their property from a security camera installed high on the wall of their new double-storey addition.
[5]
Jurisdiction
It is agreed that bamboo is a tree for the purpose of the Act and that it is growing wholly on the respondents' land. For the purpose of Part 2A, it is agreed that the bamboo is planted so as to form a hedge and rises to a height of 2.5m. Given that the respondents planted the bamboo in two discrete stages, I have determined there are two hedges - the eastern hedge and the western hedge. For the purposes of both s 10(1) Part 2 and s 14E(1) Part 2A, I accept that the applicants have attempted to reach an agreement with the respondents.
The key jurisdictional tests for each Part are provided below. If the jurisdictional tests are satisfied, the Court's powers to make orders under either s 9 and or s 14D are enlivened. Both s 9(1) and s 14D(1) enable the Court to make any order it thinks fit in the circumstances. In both Parts, before making orders, the Court must consider relevant matters in either s 12 and or s 14F of the Trees Act.
[6]
The Part 2 application
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b) is likely to cause injury to any person.
Injury is not pressed.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
[7]
The Fence
The respondents' land is elevated above the applicants' land. The bed in which the bamboo is growing is retained at its western end by timber sleepers and further to the east by a brick retaining wall. There is a gap between the brick wall and the lapped and capped timber dividing fence between the parties' properties. The fence posts are fixed to parts of the respondents' retaining wall.
The applicants engaged Mr Guy Paroissien, a Consulting Arborist, to provide advice. In his report dated 24 September 2015 Mr Paroissien identifies the bamboo as a clumping species Bambusa textilis var. 'Gracilis' (Slender Weaver). He states that the cultivar can grow to 8m in height, is suitable for pruning, larger stems can be removed, and the diameter of the clump could reach 1.5m in diameter. Mr Paroissien notes the proximity of the clumps to the dividing fence and considers that if they are allowed to spread to their potential dimensions, the clumps are likely to interfere with, and potentially impact upon, the fence and the adjoining masonry drain. He then states that the species can be successfully managed with regular ongoing pruning, the removal of larger diameter culms, and the regular removal of new growth on the southern side of the clumps. He opines that the success of the maintenance would rely on a maintenance commitment from the owner of the bamboo. In oral evidence Mr Paroissien maintained his opinion and stated that in order to prevent interaction with the fence, apart from removing stems closest to the fence, some cutting down into the soil may be required. He observed the current diameter of the clumps to be about 500mm.
The respondents engaged Ms Catriona Mackenzie, a Consulting Arborist to inspect the bamboo and prepare a report in the light of the Class 2 application made by the applicants. At paragraph [41] of her report (Exhibit 2) Ms Mackenzie states that she did not have access to the applicants' property and was therefore unable to determine the nature of the damage allegedly caused by the bamboo.
In their written response to the applicants' contentions (Exhibit 1), the respondents state at [25] that they have allowed lateral and northern spread of the clumps but have removed new growth as it has appeared adjacent to the brick or timber barriers to the south.
[8]
Findings
Whilst the application claim form shows photographs of bamboo leaning on the fence, I was not shown any physical damage to the fence. It was alleged that the side gate close did not properly close and this could be an indication that some displacement of the fence may have occurred, however I was not shown any evidence of any interaction between the bamboo and the fence to indicate that the bamboo is the cause of the alleged problem with the gate.
I am not satisfied to the extent required by s 10(2)(a) that any of the bamboo plants have caused or are causing damage to the fence. Assuming no future maintenance is undertaken by the respondents, no evidence has been adduced as to the expected growth rate of the clumps and the timeline for future damage. It would appear from the respondents' evidence, and confirmed on the site view, that the bamboo is regularly maintained. I also note the gap between most of the fence and the retaining structures on the respondents' property. There is no evidence that damage to the fence is imminent. Therefore, this element of the claim is dismissed.
[9]
The drain
In June 2015 the applicants engaged ACOR Consultants to inspect the property and to inspect and report on the bamboo hedge. Mr Kosmas Roumanis, a Building Consultant and Structural Engineer, carried out a visual inspection of the applicants' property. Mr Roumanis' report dated 14 September 2015 states that he was advised by the applicants that a channel drain running along the northern boundary of their property pre-existed the bamboo hedge and exists exclusively to service storm water drainage from the respondents' property. He was also advised that the applicants' property is subject to a significant amount of ground water flow as evidenced by moisture in the basement.
Mr Roumanis made a number of observations regarding the building generally and the drain specifically. He noted that the brickwork of the stormwater drain was saturated and exhibited moss growth. Photographs 10 and 11 in his report purport to show dampness and moss growth next to the drain and saturated brickwork on an elevated section of the channel drain. Mr Roumanis concludes that due to the height of the bamboo (estimated by him to be about 3m) and its close proximity to the boundary and the drain, the root system may be exerting increased lateral pressure on the drain which could result in damage to it. Mr Roumanis recommends relocating the bamboo further to the north.
The application claim form includes another report by Mr Roumanis, identical to the first report but dated 14 September 2016….unusual given that the date of the hearing was 23 June 2016.
The applicants tendered a statement prepared by Mr Rod Windrim, the builder who carried out the alterations and additions to the applicants' dwelling from July 2014 (Exhibit L). He says in his statement dated 16 June 2016 that he observed the drain along the northern boundary. Mr Windrim states that as part of the building work on the applicants' property he repaired the drain as it had been damaged by what he describes as pressure applied to it by the roots of adjacent trees and shrubs. It is understood that these plants were growing on the applicants' property and have since been removed. Mr Windrim advises that the drain is concrete with no steel reinforcement. In his opinion, persistent root pressure could, at some time in the future, cause the drain to rupture resulting in "catastrophic" damage to the drain and therefore exposing the applicants' property to uncontrollable ingress of water and potential structural damage.
Exhibit D is a statement dated 3 May 2016 prepared by the applicants in respect of the stormwater drain. This includes a 1990 letter from a previous owner of the applicants' property to the Town Clerk, Ku-ring-gai Council. The letter describes drainage problems arising from water flowing from the respondents' land. A more recent survey and letter from the surveyor confirms the location of the drain. An extract from a Building Report dated 24 February 2014 also notes makes reference in an end note to stormwater being discharged from the adjoining property [presumably the respondents' property] onto the applicants' property.
During the site inspection, I was shown the point at which water pumped from the applicants' basement was discharged into the drainage channel.
[10]
Findings
As with the fence, I was not shown any evidence of any damage being caused to the drain by the respondents' bamboo. I am not surprised that a brick drain has areas of damp or moss growth; this is not damage. I am not satisfied there is any evidence that damage arising from root pressure is likely in the near future. Therefore this element of the application is dismissed.
[11]
The wall
The applicants contend that the bamboo shades the northern façade of their dwelling causing damage to it by encouraging the accumulation of mould, damp and moss on the building. They rely on the opinions of their experts.
Apart from being asked to comment on the stormwater drain, Mr Roumanis also reported on the wall. In his September 2015 report he observes:
The ground level bathroom is ventilated via the window on the northern façade.
There was what appeared to him to be moss growing in a number of locations on the northern brick façade which appeared to be damp; moss was not obvious on other brick walls;
The basement of the dwelling was damp with evidence of what appeared to be visible groundwater flow. A drainage sump with pump was noted in the basement.
Mr Roumanis makes a number and comments on what he observed; in particular that the bamboo hedge is shading the northern elevation of the dwelling. He opines that: The lack of natural sunlight encourages the accumulation of damp, mould, moss and other growth which may lead to loss of amenity and create a health hazard. The restriction of natural air flow around the building caused by the hedge would exacerbate the above. Apart from relocating the bamboo further to the north, Mr Roumanis recommends cleaning the wall. Photograph 8 in his report shows what appears to be moss on one of the bricks.
Mr Windrim in his report describes drainage and ventilation works he undertook during the renovations. In his opinion, all drains installed during the works are functioning as expected and any dampness or poor drainage is the result of factors not related to those works or their design.
Exhibit C is the Statement of TKD Architects, the architects who designed the applicants' alterations and additions, dated 2 May 2016. In it are two letters, the first dated 26 February 2016 from Mr John Rose. Amongst other things, Mr Rose expresses his concerns about the growth of the bamboo including its potential impact on the thermal performance of the house, the reduction of natural ventilation and air movement, reduction in access to natural light, and the reduced amenity of the garden. He opines that the hedge is "of an unjustified scale" and in his opinion a height of 1.8 - 2.0 m above ground is sufficient to provide privacy between properties. The second letter, dated 2 May 2016 is from Mr Lachlan Rowe who supports Mr Rose's opinion.
In a further Statement in Reply by Mr Roumanis dated 7 June 2016 (Exhibit J), he states in his experience, prolonged accumulation of mould and or damp on the façade of a building can lead to blistering and or flaking paintwork on the internal surfaces of the façade wall.
The respondents press their contention that the eastern hedge was well-established at the time the applicants purchased their property and certainly when the extensive renovations were in the planning stage. As stated above, the respondents rely upon photographs taken by them, and included in Exhibit 1, in August 2013, March 2014 and July 2014. They also rely on photographs taken by Tanner Kibble Denton Architects (TKD) included in a Statement of Heritage Impact dated July 2014 which accompanied the applicants' development application to council (Exhibit 1, Appendix A p.6) and on the "nearmap™" images included in Ms Mackenzies' report taken in February 2014 and on 15 May 2014 shortly before and after the applicants purchased their property (p 12 Exhibit 2).
The respondents also rely on professionally prepared shadow diagrams (Exhibit C) illustrating the shading of the northern wall without the hedge (Scene 1: Fence only no hedge), with the eastern hedge at the height they estimate it was not long after the applicants purchased their property (Scene 2: May 2014 Hedge) and with the hedge at its current height (Scene 3: Current hedge). Ms Hemmings, counsel for the applicants, contested the accuracy of the May 2014 shadow diagrams as the letter from the architect who certified the diagrams states that Scene 2 was based on photographs provided by the respondents and dated by them as May 2014. She contends that none of the photographs in the respondents' material are dated May 2014. The respondents agree that this is a small error but maintain the photographs provided to the architect are those in Exhibit 1 (referred to above).
The shadow diagrams show the shadows cast by the respondents' dwelling and by other trees. The respondents note that the May 2014 diagrams show shadows cast on the northern wall to about the height of the eaves of the east-facing garage. While they agree that the bamboo at its current height shades more of the wall during the winter solstice and part of the wall at the equinoxes, the majority of the wall receives sunlight for most of the year. The respondents also note that until recently the applicants were discharging groundwater from their basement into the open channel drain on a regular basis.
[12]
Findings
During the site inspection I viewed the northern façade of the applicants' dwelling. It is constructed of clinker brick. I saw a few bricks, particularly those with a rougher texture (and which may be more porous), with a greenish hue - possibly algal growth or moss, and some lichens growing on some of them. These greenish bricks were in the minority, randomly spaced and in more elevated positions on the wall. I was not shown any actual physical damage to any brick or any evidence to prove the applicants' contentions. I have not been convinced that what the applicants contend is 'damage' is indeed actual damage. The statements suggesting that the bamboo restricts air movement and natural ventilation appear unfounded as the bamboo is not a solid barrier, individual culms are free to move, and there is a setback of approximately 1m between the dividing fence and the lower portion of the applicants' dwelling; in this space there is nothing to impede the movement of air. In any event there is no proven nexus between the bamboo and the occasional greenish brick.
Apart from the absence of proof of damage, I am also satisfied that the eastern portion of the hedge was well-established when the applicants purchased their property. A photograph taken on 10 August 2013, some six months before the applicants state they inspected the property prior to purchasing it at auction, shows the bamboo about three months after it was planted. I estimate the culms, with leaves expanded, to be approximately 1m above the top of the dividing fence. A photograph taken on 4 March 2014 shows the western part of the eastern hedge with dense foliage on the lower parts of the stems and emergent, leafless shoots above. Other photographs taken on July 12 2014 show the dense lower section of the bamboo above the fence , with taller bare culms above. In my opinion, expanded views of Figure 9 from the July 2014 TKD Statement of Heritage Impact clearly show dense foliage of bamboo up to at least the eaves of the west-facing verandah and the taller emergent culms, a significant number of which were shooting into leaf. I am also satisfied that the indicative shadow diagrams prepared to illustrate the probable shadows cast by the eastern part of the hedge about the time the applicants purchased their property to be sufficient to prove that the lower portion of the northern façade was in shade at that time. The 15 May 2014 nearmap ™ photograph, taken at about the time of settlement, shows the eastern bamboo hedge above and over the dividing fence. The nearmap™" photographs also appear to show considerably more tall trees to the west of their property.
However, given my comments in [44] I find s 10(2)(a) is not satisfied, this element of the application is dismissed.
[13]
The lawn
The alleged damage to the lawn is the shading of the eastern end of the section of lawn in the north-western corner of the applicants' property. The 'damaged' lawn is an approximately one metre wide bare strip along the edge of the verandah of the west-facing return of the dwelling. The lawn is between the north-facing dining room/kitchen extension and the dividing fence between the parties' properties.
The lawn was not listed as an element of the damage claim in answer to question 4 in the Part 2 application claim form; it was raised in material filed late with the Court.
The reference to an applicant's property in s 7 and s 10(2)(a) may also include vegetation growing on it (Robson v Leischke [2008] NSWLEC 152 at [166]).
In a Statement of Loss of Sunlight - prepared by Morepower - 2 May 2016 (Exhibit H), Mr Paul La Ganza who signs himself as a 'Qualified Arborist' states that in early 2015 a professional landscaper prepared the area for planting and installed a 'shade resistant' soft leaf Buffalo lawn. Preparation included installation of agricultural drainage pipes, quality soil and fertiliser. Mr La Ganza states that in his professional opinion the lawn at the eastern end has been severely impacted by lack of sunlight and general heat from the sun reaching the area due to the obstruction and shadow cast by the hedge…
The respondents rely on the shadow diagrams which show part shading of that section of the lawn by the applicants' dwelling and by the dividing fence. While they accept that the bamboo shades that section in mid-winter they also observe that the fence, absent the bamboo, shades the northern portion of the lawn at all times of the day in mid-winter but that portion of the lawn is still green and healthy. The respondents also note that based on the shadows cast by the hedge at the equinoxes, for the majority of the year that end of the lawn is not shaded to any great extent by the hedge.
[14]
Findings
I observed the relevant part of the grassed area to be bare and with a wet sheen on the surface. I am not satisfied on the evidence that the applicants have established there is a "preponderance of probability" that the causal nexus between the bare patch of lawn and the bamboo exists.
During the hearing I drew the parties' attention to Figure 9 in the TKD Statement of Heritage Impact discussed above in relation to the presence of the bamboo in July 2014. The photograph appears to show a very similar brown/bare strip along the edge of the verandah at the eastern end of the lawn. While the lawn the subject of this application is a replacement, it appears that, for whatever reason, this is a difficult spot to grow turf.
I place little to no weight on Mr La Ganza's statement for a number of reasons. There is no acknowledgement of the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005; Mr La Ganza has not included his curriculum vitae; he identifies himself as an arborist and not a turf specialist; he did not appear to undertake any physical testing of the area; and the body of the statement appears to be second hand information or hearsay as it implies that someone other than he carried out the laying of the turf. I note that Exhibit M - Statement in Reply by Trevor Robertson filed on 21 June 2016 includes a copy of Mr La Ganza's Statement of Attainment in Arboricultural Techniques from 1996 [a short course in Arboriculture].
With the horticultural expertise I bring to the Court I consder that there may be other reasons for the poor performance of that section of the lawn, however nothing other than an unsubstantial opinion about shading from the bamboo has been put forward. I agree with the respondents' submission that if shading from the bamboo was the primary cause, one would expect to see the grass on the northern side of the lawn in a similar condition.
Therefore, absent satisfaction of s 10(2)(a), no orders will be made for any intervention with the bamboo on the basis of the alleged damage to the lawn.
[15]
Other
In Exhibit E the applicants assert that the bamboo hedge shades their clothes line which is attached to the northern façade of their dwelling. They consider this is a major loss of amenity and a significant inconvenience.
In Robson v Leischke [2008] NSWLEC 152 at [168]-[173] Preston CJ discusses the relationship between types of 'nuisance' and what constitutes 'damage to property' in the context of the trees Act. The inconvenience caused to the applicants is not 'damage to property on the land' and is not a matter capable of being considered under the Trees Act.
[16]
The Part 2A application
The key test in applications made under Part 2A is found in s 14E(2) which 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.
While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows. Only obstruction of sunlight is pressed in this matter.
In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
As stated above, the applicants contend that the respondents' bamboo severely obstructs sunlight to the ground floor bathroom window on the northern façade and the west-facing full-length windows of the master bedroom.
The respondents rely on the shadow diagrams and their contention that the eastern portion of the bamboo was present and well-established when the applicants purchased their property.
Regarding the bathroom window, I observed there to be dappled and filtered sunlight to that window at about 1.00 pm on 23 June, two days after the winter solstice. In putting the applicants' case at its highest, and based solely on the shadow diagrams, I am satisfied that the respondents' bamboo severely obstructs sunlight to the bathroom window and therefore s 14E(2)(a)(i) is met. In regards to the bedroom window, based on the difference between Scenes 1 and 2 and Scene 3, the bamboo obstructs the approximately two hours of sunlight that were available between about 12.00pm and 2.00pm. Therefore, again putting the applicants' case at its highest, I am prepared to accept that part of the western hedge does severely obstruct sunlight to this window and s 14(E)(2)(a)(i) is met.
In order to determine the balancing of interests inherent in s 14E(2)(b), consideration of relevant matters in s 14F is useful. These are:
The bamboo is planted along the common boundary on the northern side of the applicants' property. The eastern hedge is within about 1.5m of the applicants' dwelling. The respondents' land is elevated above the applicants' land (s 14F(a)).
I am satisfied on the basis of the respondents' photographs that the eastern hedge was established before the western extension to the applicants' dwelling and the western hedge was planted during the period over which the extension was being constructed (s 14F(b)).
I am also satisfied that the western hedge has grown to a height of more than 2.5m during the period the applicants have owned their property and that the eastern hedge was at least 2.5m high when they purchased their property (s 14F(c)).
The applicants press a landscape design sketch plan prepared in about 1979 or 1980 for the proposed development of the property the respondents' now own. The hand written notes on the plan are difficult to read; the applicants' interpret the notation for vegetation near their northern boundary as "low shrubbery". I am assuming that this is put forward to suggest that the respondents' landscaping does not comply with a previous consent. The respondents' interpret the notes to say "new shrubbery". With the aid of a magnifying glass I concur with the respondents' interpretation (s 14F(e)). I also note that the landscape sketch plans are simply that and drawn some 36 years ago. No reasonable person would assume that a landscape may not have changed during that time, particularly if the property has changed ownership over those decades.
The respondents maintain that the primary reasons for planting the bamboo were to soften the visual impact of the applicants' dwelling and to provide privacy to both properties. The respondents reiterated the fact that the ground level of their property is elevated above that of the applicants; the respondents have a two storey dwelling with living areas on the first floor which overlook the applicants' property; the primary area of recreation is elevated above and overlooks the new additions; despite the western hedge at night they can see through the hedge into the applicants' dining room; there is light spill from the applicants' extension on to their property; and they are concerned about the security camera located high on the new addition. They also value the hedge as part of the design of their garden. The applicants argue that the hedge need not be so high in order to ensure privacy between the properties (s 14F(h)(l)).
As illustrated in photographs tendered by both parties, the hedge is regularly pruned to its current height. Pruning appears to principally remove the tall tips of generally leafless culms. The good health of the hedge indicates that the pruning has had no detrimental impact (s 14(k)).
The shadow diagrams indicate that factors other than the bamboo shade the applicants' windows. These include: the respondents' dwelling; a Canary Island Date Palm within several metres of the applicants' dwelling to the northwest of the bathroom window - this has a dense canopy which partly overhangs the applicants' roof; a tall Sydney Blue Gum approximately 12m to the north of the dividing fence; a mature Himalayan Cedar about 8m to the north of the fence an opposite the western extension; and tall remnant eucalypts with a mid-storey beneath on the elevated property to the west and north-west of the parties' properties. There is a degree of self-shading from the verandah over the bedroom windows. The applicants' architect agreed that the use of a figure of 50% shading to represent vegetation as shown on the shadow diagrams is a usual practice. The respondents stated that, if anything, the influence of the Date Palm, as shown on the shadow diagrams, is conservative (s 14F(m)
[17]
Findings
In determining s 14E(2)(b) and having considered the evidence and the parties' submissions, for the following reasons no orders will be made for either the removal of the bamboo or for its reduction in height.
Neither the bedroom or bathroom windows are windows to the principal living areas of a dwelling. Bathrooms are not usually places where people spend many hours; self-evidently, bedrooms are principally occupied at night. While some previous Part 2A applications have discussed an applicant's desirability for morning sun to a bedroom, these windows face west and are only affected by the western portion of the respondents' bamboo for about 2 hours per day, after which they become shaded by other vegetation. While the windows may not receive direct sunlight, they do receive ambient light. In any event, little weight is given to sunlight to windows which are not connected to living areas. This is generally consistent with environmental planning instruments and many councils' development controls which require a specified number of hours of sunlight, on the winter solstice, to part or all of windows to living areas. In my experience, I have not seen any planning control specifying hours of sunlight to be provided to bedroom or bathroom windows.
As I observed on the day of the hearing, the bamboo is not such a dense plant that prevents all transmission of sunlight; filtered sunlight will be available to both windows.
Although the orders sought by the applicants only considered complete removal of the bamboo, at the latter stages of the hearing it was suggested that the bamboo could be reduced in height. While the respondents acknowledged that this may be possible, they maintained their position that the current height of the bamboo did not obstruct sunlight to the applicants' main living area and that any reduction must ensure their privacy, including privacy from the applicants' security camera and the light spill.
The applicants did not provide any alternative height that may achieve this possible compromise nor did the applicants provide any shadow diagrams of their own to demonstrate that possible option.
Given the relative position of the respondents' property to the applicants' property and the change in the western portion of the applicants' dwelling from the back wall of a garage to the kitchen and primary living area, I find that the respondents' request for privacy outweighs the applicants' interests in having the bamboo removed or pruned, particularly when the shadow diagrams prove that the hedge at the height at which it is regularly maintained does not obstruct sunlight to the kitchen/dining room windows.
As s 14E(2)(b) is not found in the applicants' favour, the Part 2A application is dismissed.
[18]
Orders
The orders of the Court are:
1. The application in its entirety is dismissed.
2. The exhibits except A are returned.
Judy Fakes
Commissioner of the Court
[19]
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: 06 July 2016
The respondents have the bamboo professionally trimmed on a regular basis - two to three times per year (s 14F(n)).
Based solely on the respondents' shadow diagrams, the applicants lose all sunlight to the bathroom window and 2 hours of afternoon sun to the master bedroom. As stated above, I observed dappled sunlight through the bathroom window (s 14F(o)).
The bamboo is evergreen (s 14F(p).
The sunlight is obstructed to a ground floor bathroom to a second bedroom; the other is to the 'master' bedroom. Neither window provides light to a living area. The bathroom window is louvered, frosted glass (s 14F(r)).