This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.
[2]
Background
Samar Sukkarieh, the applicant, owns a property in Toukley with her husband, and they share a side boundary with the respondents, Craig and Louise Goodwin. The rear of both parties' waterfront properties face north towards Budgewoi Lake and the boundary between the properties is oriented roughly east-west.
The applicant and her husband purchased their property in 2014 and lodged a development application (DA) with Wyong Shire Council in 2016 for the construction of a two-storey dwelling extending to about 4 metres (m) from the waterfront, in place of an existing old boathouse. The properties now fall under the jurisdiction of Central Coast Council (Council), which was established in 2016 upon the amalgamation of Gosford City Council and Wyong Shire Council.
Mr Goodwin objected to the DA as the proposed dwelling was to be much taller than the existing boathouse and to occupy a much larger footprint, and he opposed the proposed location, about 16 m closer to the waterfront than the respondents' dwelling and other neighbouring houses, which were constrained by a 20 m setback from the lake. Mr Goodwin called this 20 m setback area the flood zone.
In his objection to Council, included in Exhibit 1, Mr Goodwin noted that the proposed dwelling would significantly impact his family's existing water, jetty, and undulating landscape views across an arc from north to east, due to the imposing nature of the building's west side wall, which was planned to rise to a height greater than 9 m, within 1 m of the common boundary. Mr Goodwin stressed the negative impact on his family's privacy that would likely arise from potential oversight through four proposed first floor windows and from the west side of an open balcony located to the north of the first floor of the applicant's dwelling.
Though Council initially provided a report to Mr Goodwin which indicated that the applicant's development would not be supported, approval was granted in 2017. Conditions of consent required abatement of oversight which enhanced the respondents' privacy, but apparently there was no requirement for increased lake setback, or major design modifications.
The Goodwin's had purchased their property in 2008 and designed and constructed a dwelling with living areas at the rear to optimise water views through large glass doors, and open balconies. In anticipation of the applicant's development, the Goodwin's installed a studio on the east side of their back yard. Once the respondents' dwelling was in situ, this studio provided a physical barrier and some privacy between the respondents' rear living areas and the rear of the applicant's dwelling. Over subsequent years, the studio was occupied by the respondents' daughters.
The respondents' rear yard contained a swimming pool, but neither Mr Goodwin's daughters nor his wife were comfortable swimming with the spectre of oversight from the first floor of the applicant's dwelling. About five years ago, Mr Goodwin removed a Murraya paniculata hedge from his side of the common rear boundary as he deemed it unlikely to grow tall enough to sufficiently enhance privacy, and in its place, planted a hedge of Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo).
The bamboo established rapidly, and Mr Goodwin pruned it at a height he claimed was about 5.7 m - 6 m above ground level, which from photographs submitted by both parties appeared to be about halfway up the applicant's west facing first floor bedroom windows. The applicant claimed the bamboos' height was 9.5 m. Mr Goodwin appreciated the appearance of the established bamboo and its role in softening the imposing impact of the applicant's west side dwelling wall.
In early 2022, Mr Sukkarieh advised Mr Goodwin that the bamboo was brushing against the applicant's house during strong westerly winds, annoying him and disturbing his sleep. In mid-2022, Mr Sukkarieh told Mr Goodwin that he must prune the bamboo to a height of 2.5 m and claimed that this is the "legal height". Mr Goodwin refuted that the bamboo was subject to a height restriction of 2.5 m and thus refused such pruning because of the bamboos' privacy and aesthetic contributions to his family.
Consequently, Mrs Sukkarieh made an application, pursuant to s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders for the respondents to "trim the hedge to the legal height", to remedy the bamboo severely obstructing sunlight to windows of her dwelling and severely obstructing views from her dwelling.
[3]
The onsite hearing
The hearing was conducted onsite in the presence of Mrs Sukkarieh, and Mr Goodwin, who represented himself and Mrs Goodwin. The bamboo in the respondents' rear side garden was inspected initially, after which the Court moved to the first floor of Mrs Sukkarieh's residence to inspect the alleged sunlight and view obstructions, and for the parties' oral submissions.
[4]
Jurisdictional requirements - Part 2A
Part 2A of the Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.
Section 14A(1) states:
(1) This Part applies only to groups of 2 or more trees that:
(a) are planted (whether in the ground or otherwise) so as to form a hedge, and
(b) rise to a height of at least 2.5 metres (above existing ground level).
The belief that 2.5 m is the prescribed "legal height" to which hedges must be maintained is a common misconception in applications under Pt 2A of the Act. In McLaren v Lewis [2011] NSWLEC 1170, at [34], Commissioner Fakes noted;
"The Act does not place a prohibition on the growing of high shrubs, trees or hedges that may at some stage obstruct sunlight or views. The height of 2.5 m is the height threshold at which the jurisdiction is, in part, enlivened. The Act does not specify any height to which all plants must be maintained".
Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.
Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
Section 14E addresses matters of which Court must be satisfied before making an order, as follows:
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
Section 14E(2) of the Act, which is particularly significant, states:
(2) The Court must not make an order under this Part unless it is satisfied:
(a) the trees concerned:
(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or
(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and
(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Act.
[5]
Is bamboo a tree?
Bamboo is prescribed as a tree for the purposes of the Act in accordance with s 4 of the Trees (Disputes between Neighbours) Regulation 2014. Bamboo is increasingly being used for hedges and screening in urban areas and is the subject of many applications to the Court under Pt 2A of the Act.
[6]
Do the trees form a hedge?
The first test under the Act, at s 14A(1) is, are the trees a hedge for the purpose of the Act?
The bamboo was growing in a linear configuration, with the appearance of a hedge. Mr Goodwin acknowledged that he planted clumps of Slender Weaver's Bamboo close to and parallel to the common boundary. The appearance of the bamboo is consistent with the description in Wisdom v Payn [2011] NSWLEC 1012, which, at [45], says:
".... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge."
Therefore, as the bamboo was considerably taller than 2.5 m and I am satisfied that it was planted (whether in the ground or otherwise) so as to form a hedge, s 14A(1) of the Act is engaged.
I am also satisfied that s 14B of the Act is engaged as the applicant applied for relief from a perceived severe obstruction of sunlight and/or views caused by the respondents' bamboo hedge, which I found to be made up of trees to which Pt 2A of the Act applies, and which are situated on adjoining land.
The requirements of s 14C of the Act have been satisfied, as the applicant submitted evidence of service of the application documents on the respondents on 24 May 2023, which provided the required sufficient notice. As bamboo is exempt from the tree management jurisdiction of Council, there was no requirement to serve the application on Council under s 14C(1)(b) nor any other person under s 14C(1)(c) of the Act.
While s 14D(1)'s "…as it thinks fit…" allows for a broad range of orders, s 14D(2) lists orders that might ordinarily be appropriate for addressing a severe obstruction of sunlight or a view, including at (a) and (b) the making of orders that would "require the taking of specified action" to remedy, restrain or prevent the obstruction. The Court also has scope to make orders per s 14D(2)(d), which requires the removal of a tree or trees and the replacement of the tree or trees with a different species of tree.
Section 14E of the Act covers matters of which the Court must be satisfied before making an order. Section 14E(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
Mrs Sukkarieh, at question 30 of the Tree Dispute Claim Details form (Exhibit B), provided evidence of engagement with the respondents and of requesting pruning of the bamboo, since mid-2022. The applicant also endeavoured to initiate mediation through a Community Justice Centre. The respondents chose not to engage in mediation as they anticipated finding no common ground and there is no requirement for respondents to agree to mediation.
Nonetheless, this effort by the applicant satisfied s 14E(1)(a) of the Act; to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
Section 14E(1)(b) is satisfied as the applicants have given notice of the application in accordance with s 14C.
The next step is the principal test under Pt 2A of the Act; to assess the severity of the obstruction of sunlight to a window of a dwelling, or the severity of the obstruction of views from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
As noted above at [19], s 14E(2)(a) states:
(2) The Court must not make an order under this Part unless it is satisfied that:
(a) the trees concerned:
(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or
(ii) are severely obstructing a view from a dwelling situated on the applicant's land.
[7]
Obstruction of sunlight to a window of a dwelling
The applicant nominated 6 west facing windows for assessment of sunlight obstruction, 2 of which were on the ground floor and 4 on the first floor. On the first floor, there were 2 windows in the master bedroom and 1 in each of an adjacent walk-in wardrobe and bathroom. Mrs Sukkarieh claimed that 6.5 hours of sunlight was lost during winter and 7.5 hours in summer as a result of hedge obstruction, though she did not clarify to which window/s this applied.
The bamboo had been pruned to a height about halfway up the first-floor windows, which Mr Goodwin claimed was the approximate height to which he kept the bamboo maintained. The bamboo was about 900 mm distant from the respondents' wall. No photographs provided by the applicant in Exhibit B displayed the hedge appreciably higher than this current height except for thin lateral shoots, through which sunlight could penetrate. In response to Mr Sukkarieh's complaints about bamboo hitting his house and disturbing his sleep, Mr Goodwin had restrained the bamboo with webbing straps, and I was satisfied that the restraints were sufficient to retain the bamboo within the respondents' property.
The applicant expressed concern that the bamboo would grow up above the dwelling's roof and noted that "once over the top of the window", access to direct sunlight (and views of the lake and sky views) would be severely obstructed. The language of s 14E(2)(a) says, "are severely obstructing" which is constructed in the present tense. Therefore, assessment of obstruction of sunlight or views is based on the hedge characteristics at the onsite hearing and the Act does not consider a taller hedge that may exist in the future.
Photographs in Exhibit B also displayed privacy screens across the outside of the lower half of the first-floor windows, as required by Council as a DA condition of consent. These screens had been removed as at the onsite hearing, but the applicant claimed that this was only for the purpose of painting, after which they would be replaced.
I was not satisfied that the hedge was severely obstructing sunlight to the bedroom windows. The hearing was in the morning, but direct sunlight could only impact these west facing windows during afternoons. Nonetheless, with the hedge almost a metre distant from the applicant's wall and only rising to about halfway up the windows, ample indirect light was available at the hearing through these windows. A photograph in Exhibit B taken in the afternoon displayed sunlight streaming through a bedroom window above the hedge at about its current height and with the privacy screen in place. The same conditions applied to the windows in the walk-in wardrobe and bathroom, but the significance and requirement of direct sunlight is considered lower in bedrooms than living areas and much lower in bathrooms and other service rooms.
Therefore, I considered the degree of obstruction of sunlight as a result of the hedge to be negligible to low. If the applicant's claim of 6.5 - 7.5 hours of sunlight lost as a consequence of the hedge applied to any of these 4 first-floor windows, the claimed sunlight obstruction was inaccurate, at best.
During the cooler months, when the sun's arc is further to the north, winter sun can stream into the bedroom through tall glass windows and doors across its entire northern wall. Such solar access was limited only by a broad roof above the adjoining north side balcony, which could be modified by the Sukkarieh's, should they desire.
The 2 ground floor windows were in a bathroom and a service room. As aforementioned, rooms of this nature are assigned a low priority in terms of a requirement for direct sunlight as they are generally used for a limited duration, and it is considered reasonable to use internal lighting supplementarily in such rooms. Mr Goodwin had nonetheless pruned a gap in the hedge to increase light to the ground floor windows, but obstruction of sunlight to these bathroom and service room windows would not have been considered severe, even in the absence of this gap in the hedge.
Therefore, none of the applicant's 6 nominated windows engaged the requirements of s 14E(2)(a)(i) of the Act.
[8]
Obstruction of any view from a dwelling
Mrs Sukkarieh claimed that the bamboo severely obstructed her view of the lake and the sky through the same first floor west side bedroom windows. With the bamboo at its current height, views of the sky were not obstructed. Views of the lake through these windows would likely be obstructed by both the hedge and the surrounds of the privacy screen, but these windows were quite high in the wall, which was likely another DA condition of consent.
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), contains a four-step process for assessment of view sharing, the first three of which often assist the Court with applications under Pt 2A of the Act.
"[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."
Mr Goodwin cited the second step of Tenacity, noting "the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries". The third step of Tenacity is particularly relevant, whereby the extent of the obstruction impact should be assessed "for the whole of the property, not just for the view that is affected".
The applicant enjoyed an entire uninterrupted 180-degree view of the lake, land-water interface, distant undulating landscape, and the sky from a sitting or standing position on their adjacent bedroom balcony. Most of this view was also available from within their bedroom through their glass doors and windows. Though I was unable to assess conditions from northern rooms on the ground floor due to construction activity, it is likely the applicant had a similar view from there.
In assessing views available "for the whole of the property", the hedge's obstruction of the applicant's view through the 2 high bedroom windows was relatively inconsequential, and I thus considered the severity of view obstruction through these windows to be low.
[9]
Conclusions
The respondents' bamboo hedge was not severely obstructing sunlight to a window of the applicant's dwelling, nor a view from the applicant's dwelling. Upon assessment, the extent of obstruction of either was low, at best. Consequently, the requirements of s 14E(2)(a) of the Act have not been satisfied, thus there was no requirement for me to consider s 14E(2)(b), and the Court has no powers to make orders. Therefore, the application pursuant to s 14B of Pt 2A of the Act is refused.
Had s 14E(2)(a) been satisfied, however, and I was required to consider relevant elements in s 14F of the Act, the bamboos' provision of privacy for the respondents and its contribution to the respondents' landscaping and garden aesthetics are reasonable and important considerations that would have been balanced against the extent of either sunlight or views obstruction when orders were contemplated.
[10]
Orders
The Court orders are:
1. The application is refused.
[11]
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: 08 December 2023