Veleski v Masterton

Land and Environment Court (NSW)|2023-02-27

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

Background

Ms Branka Veleski, the applicant, owns and occupies a property in Kanahooka, in the Illawarra region, and shares a side boundary (the boundary) with Ms Kristie-Lee Masterton, the respondent. The boundary, delineated by a metal panel fence about 1.8 metres (m) tall, extends from south-west at the street entrance to north-east at the rear, and the respondent's property is north-west of the applicant's land.
The dispute concerns a row of Bambusa textilis 'Gracilis' (Slender Weaver's Bamboo) (the bamboo), planted adjacent to the common boundary in the respondent's rear yard. For the purposes of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, prescribes bamboo as a 'tree'.

Onsite hearing

The onsite hearing was attended by both parties. Ms Veleski was accompanied by her partner, and Ms Masterton, by her son, and Ms Davies, tipstaff from the Court, attended as an observer. The bamboo, and its alleged impacts, were assessed from both parties' properties, prior to oral submissions.
The bamboo formed a continuous screen which extended for about 8 m along the common boundary from the respondent's north-east corner before terminating about 1 - 2 m short of the respondent's dwelling. The bamboo's height averaged about 6 m.
From the respondent's rear courtyard, the bamboo may have appeared taller, as soil had been excavated during the property's development to provide a level surface for this area, on land that hitherto sloped upwards towards the rear. Consequently, the applicant's courtyard level was about 900 millimetres (mm) lower than the level of the respondent's rear yard and the level of properties bordering at the rear. This height difference was accommodated by retaining walls about 700 mm tall, inset from both the applicant's rear boundary, and her side boundary shared with the respondent. The applicant's resultant raised garden beds between the retaining walls and the respective metal panel fences were filled with white rocks.
Much of the applicant's rear courtyard was covered with a large flat roof which sloped down distinctly towards the rear to create an expansive alfresco area. The roof supported solar panels, and the irregular shape of the parties' land and building alignments resulted in the distance between the alfresco area's roof and the bamboo increasing from about 2.5 m at the rear to about 4 m where the bamboo terminated near the respondent's dwelling.
The application under Pt 2 of the Trees Act shall be addressed initially.

Jurisdictional requirements - Part 2

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, consequent of a tree/s to which the Trees Act applies that is situated on adjoining land.
The Court's ability to make orders is limited, at s 10 of the Trees Act. 10 Matters of which Court must be satisfied before making an order (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 tree is 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 8. (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.
If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 of the Trees Act, to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree/s. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Did the applicant make a reasonable effort to reach agreement with the owner of the land on which the trees are situated?

As is common with many tree disputes, negotiations between the parties have been fraught, with issues in conflict extending beyond the disputed bamboo. Nonetheless, in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), at [192], Preston CJ notes that the Trees Act, "does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner".
At [194] of Robson, his Honour observed that the Trees Act: "194 … does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. "Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
Within [195] of Robson, his Honour notes the requirement of the Trees Act, "that the applicant has made a reasonable effort to reach agreement", is less demanding than "reasonable attempts", or "all reasonable attempts", which is "the language used in provisions of other statutory enactments".
Both parties provided logs showing text messages exchanged since 2020 which displayed efforts made to negotiate a solution and to substantiate claims disputed by their respective neighbours. Ms Veleski provided evidence of an unsuccessful attempt, made in June 2022, to arrange mediation with the respondent through a Community Justice Centre, as recommended by the Court.
There is no requirement for Ms Masterton to agree to such mediation requests, but, considering the above commentary from Robson, this evidence of the applicant's efforts is sufficient to satisfy the requirement that the applicant "has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated". Therefore, s 10(1)(a) of the Trees Act is engaged.
Ms Veleski has also clearly communicated her proposal that Ms Masterton remove all her bamboo and given notice of the application in accordance with s 8, such that s 10(1)(b) of the Trees Act is engaged.

Section 10(2)(a): Damage caused by the trees, or likely in the near future

The applicant's submission

In her Tree Dispute Claim Details (Damage to property or injury to a person) (Exhibit B), Ms Veleski claimed that bamboo leaves clogged her roof gutters, which could trap moisture in house eaves, may affect her house foundations, and contributes to the growth of moss, mould, and algae.
The applicant submitted that bamboo leaves similarly blocked surface dish drains, which restricted water escaping through PVC stormwater drains. She claimed this water flow impedance, along with bamboo roots near the boundary fence, may damage the adjacent retaining walls, these walls' foundations, the drains, and concrete. The applicant also claimed that the blocked drains caused unpleasant odours, attracted mould and pests, and risked contamination and bacteria.
To mitigate this damage, the applicant claimed a blower was used daily to clean her outdoor areas, a gurney was used to clean concrete, and that leaves were regularly cleared from dish drains and removed from gutters to maintain storm water flow. Gutter guard had also been installed but had largely failed to prevent leaves entering gutters.
Ms Veleski claimed that the height of bamboo culms (stems), the bamboo roots, and bamboo leaf drop, all posed a threat of damage to the boundary fence. She said that damage to her roof may result from tall bamboo stems swaying in winds and impacting the roof. The applicant supported a claim that a bamboo stem had broken into her yard with photographs and noted use of gloves for clearing gutters and drains, and sprays and citronella candles to repel insects.
Ms Veleski also submitted that her raised garden beds filled with white rocks and widely spaced Sansevieria plants had been ruined by dry bamboo leaves falling into the garden beds.

The respondent's submission

Ms Masterton submitted a response dated 13 February 2023 (Exhibit 1), which included a 'Statement', a shadow diagram report, a medical report, and annotated copies of both Exhibit B and the applicant's Tree Dispute Claim Details (High Hedges) (Exhibit C).
In her 'Statement', the respondent alleged that the applicant's allegations of property damage and claims regarding 'high hedges' were not substantiated by evidence. Ms Masterton noted that removal of the bamboo would significantly compromise her families' privacy in their downstairs living areas, and back yard or pool area, because these latter two areas are elevated on her land, such that the common fence is short from her side.
Ms Masterton stressed the bamboo's role providing privacy to her son's bedroom, which is located upstairs at the rear of her dwelling. This bedroom was allegedly designed with many windows to enhance airflow, and thus relieve a respiratory condition suffered by her son. The respondent was aggrieved by cigarette smoke emanating from the applicant's land, and she claimed the bamboo also helped filter and mitigate this smoke.
The respondent noted that the bamboo was integral to her garden design and landscaping and contributed to her garden's beauty and to an ecosystem featuring birds, lizards, butterflies, and other insects. She claimed that removal of the bamboo would thus negatively impact her families' amenity and lifestyle.
Ms Masterton submitted that she and her family responded promptly to requests from the applicant to trim the bamboo, and that they prune both encroaching foliage and any foliage close to the fence line, tidy up, and remove debris. The respondent claimed that her family undertakes such pruning 2 or 3 times a year, regardless that only annual pruning is recommended. Excerpts from the parties' text messages confirm at least one such response.
The respondent submitted that on two occasions she had attempted to reduce leaf drop impact by restraining bamboo encroachment into the applicant's property with netting. Ms Veleski allegedly rejected these solutions as she found the netting aesthetically displeasing.
Ms Veleski's photographic Exhibits' 7 and 8, dated 27 February 2023, showed a large quantity of bamboo debris spread across the floor of the applicant's al-fresco area, particularly around the dwelling's doorway near the far side of the applicant's land, about 10 m from the bamboo. Based on the large quantity and location of the debris, Ms Masterton claimed that the bamboo debris shown in Exhibits' 7 and 8 did not result from a natural occurrence, but instead had been 'staged' by the applicant to amplify the bamboo's alleged impact.

Damage attributed to bamboo debris

Most of the applicant's damage claims arose from accumulation of bamboo leaves in roof gutters and in dish drains, annoyance from bamboo debris causing a maintenance burden, and potential secondary damage likely from water accumulation caused by drains blocked by bamboo debris.
At [171] of Robson, with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", his Honour states: "171 … annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", is not "damage to property on the land" within s 7 of the Act, and that "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
The applicant provided no evidence such as dented, scratched or distorted roof gutters or dish drains that persuaded me that bamboo leaves had damaged the roof gutters or drains. Nor did Ms Veleski submit evidence that may have substantiated alleged future damage to eaves, or to house or retaining wall foundations.
Under the jurisdiction of the Trees Act, alleged future damage is limited to "the near future". Based on a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the near future is defined as about 12 months from the date of the determination. Claims of "near future damage" require supporting evidence to prove that they are probable, rather than merely possible and speculative. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said: "62 … something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage …".
Therefore, in the absence of supporting evidence, I am not satisfied that the applicant's allegations of future damage to eaves or walls have been proven beyond a theoretical possibility. Therefore, Ms Veleski's claims have failed to satisfy s 10(2)(a) of the Trees Act.
Though Ms Veleski desired that all bamboo foliage should be restricted to the respondents' land and not encroach beyond the boundary, this is not a requirement under the Trees Act, unless the tree/s are causing damage. This is considered at [56] of Robson, where his Honour, discussing the issue of nuisance, states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action...".
As many applications under Pt 2 of the Trees Act have claimed leaves and other debris falling or blowing from trees to be damage, a Tree Dispute Principle was established at [20] of Barker v Kyriakides [2007] NSWLEC 292 (Barker), as follows: "20 It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.""
This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applies here with respect to all bamboo debris described by the applicant, observed on her land, and shown in attached photographs.
The large quantity of densely packed debris shown on the al fresco area's floor in the applicant's Exhibits 7 and 8 was exceptional and disproportionate to the consistently smaller quantities of debris seen near the bamboo row or on adjacent paths, both onsite and in myriad photographs supplied by both parties.
Some of the debris shown in Exhibits 7 and 8 had multiple leaves connected to stems around 150-250 mm long that, on face value, appeared to have been cut. Even small bamboo stems do not break cleanly or easily and do not naturally shed as they appeared in these exhibits. The applicant did not reasonably explain circumstances that may have caused such an exceptionally high level of leaf debris blowing so far onto the al-fresco area, and meteorological data recorded on 26 - 27 February 2023, the day Exhibits 7 and 8 were photographed and the day prior, showed the Illawarra region received a moderate temperature and no rain, that winds were gusty but moderate, and blew from the SSE - SSW, whereas winds likely to blow debris onto the alfresco area would likely come from the north.
As these weather conditions were unlikely to cause unusually high leaf drop, and nor did any photographs of the bamboo display water stress that may cause heavy leaf drop, I accepted that the authenticity of Exhibits' 7 and 8 was doubtful and thus discounted their value as evidence. The applicant did not, however, submit that Exhibits' 7 and 8 were representative of the bamboos' usual impact but even if a rare storm caused this level of bamboo debris, the maintenance expectation established in Barker would still apply.
The expectation of regular grounds maintenance established in the Tree Dispute Principle in Barker extends to sufficient cleaning of gutters and drains to minimise the alleged likelihood of secondary damage to eaves and walls. Installation of gutter guard has been considered part of reasonable maintenance in past judgments under the Trees Act. The weave of the applicant's existing gutter guard was too open to effectively exclude bamboo leaves, but tighter weave, higher grade gutter guard is readily available. Further, I was not persuaded by the applicant's claim that the bamboo debris was a fire risk, particularly with little bushland in close proximity.
Cleaning of mould, moss, or algae from concrete paths and other surfaces is also considered to be reasonable maintenance, as the maintenance expectation arising from Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 at [11] to [14], to include the cleaning of mould and slime. I concur with the respondent that three consecutive La Nina cycles, resulting in markedly above average rainfall from 2020 - 2022 inclusive, would have contributed to the growth of mould, algae, or slime on the applicant's land. Management of unpleasant odours and risks from "contamination and bacteria" also fall under this expectation of reasonable maintenance.

Damage from bamboo roots and stems

The applicant claimed that roots from the bamboo were likely to cause future damage to her retaining walls and boundary fence, but again provided no substantive evidence to support this claim. The retaining walls are well clear of the bamboo, and I observed no evidence of fence damage or misalignment. Presuming that the fence had been installed to the manufacturer's specifications regarding depth of posts and quality of workmanship, I am not satisfied that near future damage is likely. Consequently, the Trees Act is not engaged by this damage claim.
I refute the respondent's submission that the growth of Slender Weavers Bamboo is relatively static, and that this species lacked the ability to cause damage to surrounding objects, notwithstanding that such claims are commonly included in advertising and internet reference material. The Court inspects many sites where this species is used and has observed its roots exerting considerable pressure on objects it encounters, such as fences. Regardless that Slender Weavers Bamboo is a clumping variety, clumps broaden asnew stems grow at their edges and it has potential in the longer term to cause fence damage and spread under the fence into the applicant's property.
In similar situations, the Court has ordered or recommended the respondent undertake damage abatement or prevention, comprising excavation of a trench about 300 mm wide x 250 mm deep between the boundary and the back of the bamboo and keeping the trench free of soil and bamboo on an ongoing basis. With clumping bamboo, this solution is generally more effective than a root barrier.
Regarding the applicant's claim that future roof damage is likely to result from bamboo stems swaying in winds and impacting the roof, Ms Veleski did not indicate any prior impacts on site, nor in photographs, to support this claim.
Video evidence showed the bamboo swaying heavily in winds, but the sloping roof of the alfresco area is at its lowest and at least 2 m distant, where the roof is closest to the bamboo. With the soil level of the bamboo being about 1 m higher than the applicant's ground level, and the bamboos' swaying being above the boundary fence, the bamboo would have to arch over dramatically to impact the al-fresco roof, not merely sway as per the video evidence. With consideration of these factors and the bamboos' current proportions, roof contact is unlikely in the near future, thus this damage claim is dismissed.
In some previous cases, the Court has ordered or recommended restraint of bamboo stems, to remedy, or minimise the likelihood of stems swaying and potentially causing damage in heavy winds. Though Ms Veleski disliked the respondent's use of netting to contain the bamboo and restrain its movement, the installation of a mechanism, like webbing straps or posts and rails, to restrain stems swaying, may be prudent.

Section 10(2)(b): Is the bamboo likely to cause injury to any person?

The applicant claimed that the bamboo was likely to cause injury due to: 1. risk of falling from ladder, 2. slip and trip hazards, 3. broken branches, 4. attraction of pests such as mosquitoes, rats, wasps and spiders.

Findings

Though Ms Veleski related the height of the bamboo to the risks of ladder use at question 9 of Exhibit B, the applicant provided no other reference or evidence displaying that she or her partner climb on a ladder to prune high overhanging foliage. On site, encroachment of bamboo foliage beyond the common boundary was minimal, and both parties provided text message evidence of Ms Masterton and her family promptly responding to the applicant's maintenance requests . I am therefore not satisfied of a risk to any person from ladder use adjacent to the bamboo.
Regarding ladder use for cleaning gutters, I am not satisfied that a genuine risk exists, providing appropriate equipment and safe ladder use practices, readily referenced on Safe Work NSW and Safe Work Australia websites, are employed. The relevant gutters are about 2.5 - 4 m high, the ladder included in the applicant's photographs appeared to be relatively new, with suitable textured, abrasive feet for stability, and the applicant's partner, who apparently used the ladder, did not appear of an age or to have impediments to prevent safe ladder use. Alternatively, professional help could be procured, and the required frequency of gutter clearing may be significantly reduced through the installation of more appropriate gutter guard.
Risk associated with bamboo debris creating slip and trip hazards is addressed and dismissed upon consideration of the maintenance expectation established in the Tree Dispute Principle in Barker. Refer to Gieth v Athamawa [2023] NSWLEC 1121, at [21] - [25], for commentary on reasonable measures to protect personal safety whilst completing grounds maintenance.
Though the applicant had initially claimed that multiple branches had broken towards her rear yard, during oral submissions, Ms Veleski confirmed that there had only been one such branch breakage since the bamboo was installed about 7 years ago. Photographs show a stem that broke about 2 - 3 m from its tip and bent over towards the applicant's back yard, and text messages indicate the branch was removed at night by the respondent's son within about 90 minutes of notification from the applicant.
To generalise that bamboo branches are likely to cause injury, on the basis of one incomplete breakage of a relatively small stem during a 6-year period, is unreasonable. Therefore, this third injury claim is dismissed.
In consideration of the applicant's fourth injury claim, that the bamboo attracts or harbours pests, the Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals.
This is explained in Robson, at [189], where his Honour says: "189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]."
In summary, the evidence on site displayed no apparent risks of injury arising from the bamboo that may engage the Trees Act, and no submissions or evidence were provided by the applicant to persuade me otherwise. While bamboo leaves and leaf sheaths may regularly fall, it is rare for stems to break, and the likelihood of genuine injury is minimal. Any low risks that may arise can be mitigated through minor behaviour changes, quality equipment, and the use of appropriate Personal Protective Equipment, such as gloves, as noted by the applicant in Exhibit B. Consequently, the applicant's claim of risk of injury is dismissed.

Section 12 considerations

As the applicant's evidence has failed to engage s 10(2) of the Trees Act, there is no requirement for the Court to consider s 12 of the Trees Act.
Nonetheless, it is reasonable to note the respondent's submissions that are relevant to s 12 of the Trees Act. The bamboo's contribution to the respondent's families' privacy was prioritised, garden design, landscaping, and protection from smoke were also noted (s 12(b3)), as was the bamboo's contribution to the "garden's beauty and to an ecosystem featuring birds, lizards, butterflies and other insects" (s 12(d)) and (s 12(e)).
Overall, the applicant's submissions and evidence have failed to engage s 10(2) of the Trees Act, the Court thus has no powers to make orders, so the application under Pt 2 of the Trees Act is refused.

Jurisdictional requirements - Part 2A

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

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
Section 14A(1) states: 14A Application of Part (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 bamboo was planted in about 2016. It was about 6 m tall at the hearing and was growing in a linear formation in an uninterrupted row. Therefore, I was satisfied the bamboo had been planted so as to form a hedge, such that s 14A(1) of the Trees Act is engaged.
Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: 14B Application to Court by affected land owner (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
The applicant owns her land adjoining the land containing the bamboo. The applicant claims that the bamboo is severely obstructing both sunlight to a window of her dwelling, and views from her dwelling. Consequently, s 14B of the Trees Act is engaged.
Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land.

Obstruction of sunlight to a window of a dwelling

The hedge extends from the respondent's back corner and screens all but 1 - 2 m of the length of the applicant's al-fresco area. The al-fresco area's roof is about 7 m long and 9 m wide and it descends towards the rear at an angle of about 15 degrees. This large roof inhibits sunlight from entering the rear of the applicant's dwelling, so the window closest to the bamboo (W1), in a bedroom on the dwelling's western side, was nominated by the applicant for assessment of sunlight obstruction.
Both parties supplied photographs of the nominated window and possible shadowing. Having been taken during summer, when the sun's arc passes approximately overhead, photographs taken during daylight hours displayed straight shadow edges indicating that obstruction of sunlight to W1 was primarily due to the parties' dwellings, while only negligible to minor obstruction of sunlight to W1 was caused by the hedge.
Though "are severely obstructing" in s 14E(2)(a)(i) and s 14E(2)(a)(ii) describes the present tense, such that assessment of severity of obstruction of sunlight must be considered at the time of the onsite hearing, due to the sun's arc passing lower across the north sky in winter, and access to winter sunlight usually being highly valued, assessment of shadow diagrams indicative of winter sunlight obstruction, is often useful to the Court. Though the inclusion of shadow diagrams by the applicant is prompted at question 4 of Exhibit C, those available to the Court were provided by the respondent, rather than the applicant.
The applicant cast aspersions as to the reliability of the respondent's shadow diagrams based on an alleged conflict of interest between the respondent and the shadow diagrams' author, but the applicant provided no reasonable substantiation of this claim. The author, Mr Alex Dounis, Director of Residential Logistics Pty Ltd, acknowledged and agreed to be bound by the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005, and signed a declaration on behalf of himself and his company, that claimed non-association with the respondent.
The shadow diagrams were professionally produced, and, given that the hedge was located north of W1, unsurprisingly showed greater obstruction of sunlight to the window during winter. The shadow diagrams were based on the bamboo height at 5 m. As I was satisfied that 6 m was more reasonable, when assessing the diagrams, I augmented the extent of shadows accordingly.
In some cases, when determining severity of obstruction of sunlight to windows of dwellings under the Trees Act, the Court has used guidance from shadowing provisions in Council Development Control Plans (DCP's) related to Development Application assessment. Most Council DCP's use a threshold of obstruction of 50% sunlight to 50% of a window of a living area for more than 3 hours between 9 am and 3 pm inclusive at the winter solstice, to determine whether overshadowing requires modification.
Assessed on this basis, the obstruction of sunlight to W1 by the hedge did not exceed this threshold, and was thus not severe, but sunlight was sufficiently obstructed to be deemed moderate. Therefore, even at the winter solstice, I am not satisfied that the hedge would cause a severe obstruction of sunlight to W1.
Even if I had found sunlight to W1 to be severely obstructed by the hedge, the significance of obstruction of sunlight to a bedroom window would be discounted relative to a living area or kitchen, as bedrooms are considered mainly for sleeping.
The hedge is likely to obstruct sunlight to the applicant's rear yard during afternoons, but the rear yard does not satisfy the jurisdictional requirements of s 14E(2)(a)(i) of the Trees Act, which is restricted to obstruction of sunlight to a window of a dwelling. Similarly, obstruction of sunlight to solar panels does not engage the jurisdiction of the Trees Act as a solar panel is not a "window of a dwelling".
Consequently, I am not satisfied that the hedge is causing a severe obstruction of sunlight to W1, other related claims by the applicant failed to satisfy the jurisdiction, and therefore s 14E(2)(a)(i) of the Trees Act is not engaged.

Is the view obstruction severe?

The next step is to assess the severity of the obstruction of all or any of the views from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a)(ii) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: … (ii) are severely obstructing a view from a dwelling situated on the applicant's land.
At question 9 of Exhibit C, Ms Veleski noted that the hedge obstructed "the open-air view of the sky and sun from our backyard" which "closes in our outdoor al-fresco area, limiting free flowing air [and] view of clouds and sunlight".
The main factors obstructing views from the applicant's rear al-fresco area are the al-fresco area's large roof which slopes down markedly towards the rear of the yard, and the level of the excavated rear yard, which results in the floor level of the al-fresco area being about 2.5 m lower than the top of the proximal surrounding boundary fences.
In assessing the severity of an obstruction of a view, the Court has often taken guidance from a planning principle on view sharing published in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).
The third step (of a four-step process) considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
When looking up towards the common boundary from the rear of the yard beyond the view constraint caused by the al-fresco area's roof (V1, in the applicant's diagram in Exhibit C), the bamboo does severely obstruct sky views, but the jurisdiction of s 14E(2)(a)(ii) of the Trees Act does not cover views from a backyard as a backyard is not "a dwelling situated on the applicant's land". Even if V1 was included under the Trees Act, when one turns 90 degrees towards the north-east at this location, full sky views are available across a large arc through east to south.
From the second nominated viewing spot (V2), on the common boundary side of the middle of the al-fresco area, the hedge blocks sky views when facing the common boundary, but though some views are blocked by the parties' dwellings, full sky views are available across an arc from the north to the south-west. Though the applicant did not nominate views from within her dwelling, many dwelling windows also provide for unencumbered district and open sky views.
Considering views available from "the whole of the property and not just the view that is affected", in accordance with the third step of Tenacity, the applicant's desired "view of the sky and sun' is thus still available from many locations of her property, regardless that it may not be available from close to the hedge.
The applicant has not nominated special features in the sky views she claimed to be obstructed by the hedge, relative to similar readily available sky views. Further, viewing from the al-fresco area required an upward tilted outlook and sky views are only available from the edges of the area due to the obstruction by the large sloping roof. Though the applicant may not like the sense of enclosure, or reduction of free flow of air she claims the bamboo is causing, such factors are only considered at s 14E(2)(a)(ii) of the Trees Act, to the extent they impact determination of the severity of the hedge's obstruction of views from a dwelling.
The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfill. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality.
With consideration of the high bar these definitions of severity imply, and the evidence adduced, I am not satisfied that the view obstruction resulting from the hedge is severe. Consequently, s 14E(2)(a)(ii) of the Trees Act is not engaged. As the applicant's case similarly failed to satisfy 14E(2)(a)(i) of the Trees Act, above at [79], I have no jurisdiction to make orders. Therefore, the applicant's claim under Part 2A of the Trees Act is refused.
Even if I had been satisfied that the view obstruction was severe, and thus considered making orders, I must first be satisfied that the obstruction is such that the applicants' interest in mitigating the obstruction outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).
The respondent emphasised the significance of the bamboos' contribution to her family's privacy. To challenge the effectiveness of the bamboo in providing privacy, Ms Veleski submitted photographs taken from her rear neighbour's land showing that the bamboo failed to screen all the respondent's upstairs bedroom windows. However, these photographs did show the bamboo effectively screening the respondent's rear yard and considerable exposure to the elevated land of rear neighbours if the bamboo was absent. The bamboos' contribution to garden design and landscaping, to an ecosystem and biodiversity, and to the garden's amenity and ambience, are also valued in s 14F of the Trees Act.

Conclusion

Upon examining the site and considering the adduced evidence, I have reached the following conclusions: 1. Though the applicant had planned and designed a low maintenance garden and outdoor area, the use of vegetation to provide privacy and amenity is usual in urban areas, and associated vegetation debris cannot be unexpected. 2. The onus is on the applicant to prove her case. While bamboo debris may annoy the applicant, there is insufficient evidence to support Ms Veleski's claims that bamboo has caused damage, is causing damage, or is it likely to cause damage in the near future, or likely to cause injury to any person, as required to satisfy s 10(2) of Pt 2 of the Trees Act. 3. The applicant's damage claims based on bamboo debris falling or blowing onto her land are addressed and refused by applying the Tree Dispute Principle established at [20] of Barker. Potential secondary damage to eaves and walls may be avoided through exercising the maintenance expectation established in Barker. I am not persuaded that the type or extent of property maintenance required is unusual to the expectation under Barker, nor that such maintenance presents a genuine risk of injury to a person. 4. The applicant's claims, under Pt 2A of the Trees Act, that bamboo caused severe obstruction of sunlight to her rear yard, or of views from her rear yard (V1), are not relevant due to limitations of the jurisdiction. The hedge's obstruction of sunlight to W1 was negligible during summer. Based on the respondent's shadow diagrams, sunlight obstruction of W1 may increase to 'moderate' during winter, but not increase sufficiently to be considered severe. 5. Though the language "are severely obstructing", in s 14E(2)(a) of the Trees Act, restricts assessment to the trees' height to that at the onsite hearing, the bamboo has probably not reached its full potential height. A fresh application can only be made if circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148), but if the bamboo's height increased unabated, and the obstruction of sunlight to W1 became more severe, it is possible for a subsequent application to be made. Similarly, the propensity for swaying bamboo to damage the alfresco roof may increase if the bamboo was taller. 6. The applicant's nominated views of sky and sun from the al-fresco area (V2) are primarily obstructed by the al-fresco area's excavated location and its large, sloping, roof. Broad views of sky are readily available on either side of the bamboo, and from many windows of the dwelling not nominated by the applicant. Therefore, I am not satisfied that the bamboo is severely obstructing views from the applicant's dwelling. Consequently, s 14E(2)(a) of the Trees Act is not engaged, thus the application under Pt 2A of the Trees Act is also refused.

Orders

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

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: 25 July 2023

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