Welsh v Radford

The on-site hearing

1. The on-site hearing was attended by both parties, along with Mr Pagin, Solicitor for the Applicants, and Ms Radford's partner. It commenced with an inspection of the bamboo in the Respondent's property. The application site diagram displayed five clumps of bamboo growing in a line adjacent to the common boundary, but this was not the reality on site. The bamboo cut to near ground level appeared to comprise two large clumps planted fairly close together and about 1.5 m from the common boundary, each with a diameter of more than 1 m. One clump was Bambusa textilis var. Gracilis (Slender Weaver's Bamboo), while a second larger clump was Bambusa oldhamii (Giant Timber Bamboo). Cumulatively, these clumps constituted the screen along the boundary, prior to their heavy pruning.
2. A large clump of Slender Weaver's Bamboo which Ms Radford submitted had been planted initially was growing close to Ms Radford's back verandah, about 5 m from the boundary, and quite separate from the two clumps noted above, at [11]. About 4 m north of the two large boundary clumps and about 1 m from the common boundary, another Slender Weaver's Bamboo had been planted much more recently and was in the early stage of establishment.
3. The Court moved to the Applicants' property, where views, and sunlight to nominated windows were assessed. The application included professionally produced shadow diagrams based on the bamboo's presence prior to its recent heavy pruning.

Jurisdictional requirements

1. The application is made under Part 2A of the Trees Act. Part 2A 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.
2. 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).
3. 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.
4. Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located.
5. 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).
6. 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.
7. Of significance is s 14E(2) of the Trees Act. This 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.
8. 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.

Findings: Sections 14A - 14D of the Trees Act

1. Bamboo is prescribed as a tree for the purposes of the Trees Act in accordance with the Trees (Disputes between Neighbours) Regulation 2014. It is increasingly being used for hedges and screening in urban areas and thus, unsurprisingly, is the subject of many applications to the Court under Pt 2A of the Trees Act. The growth characteristics of bamboo has seen the Court, in some discrete circumstances, take a nuanced approach in order to maintain consistency with the purpose of Pt 2A of the Trees Act, and this is appropriate here.
2. Ms Radford has acknowledged that she planted what have grown to be large clumps of Slender Weaver's Bamboo and Giant Timber Bamboo, close to and parallel to the common boundary, to regain privacy in her backyard. The appearance of these trees is consistent with the oft referenced 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."
3. Therefore, I am satisfied that these trees are planted (whether in the ground or otherwise) so as to form a hedge, engaging s 14A(1)(a) of the Trees Act.
4. In considering s 14A(1)(b), where the trees must rise to a height of at least 2.5 metres (above existing ground level), I refer to Steber v Job [2019] NSWLEC 1308 (Steber), where Galwey AC considered similar circumstances to those of this case. At [10] - [12] of Steber, Galwey AC said: "10 Photographs included in the Stebers' application show the situation at the time, or shortly before, they applied to the Court (the date stamp is clearly incorrect as the Stebers' dwelling was not present in 2011). These photos unequivocally show the bamboo to be more than 2.5 metres tall and to form a hedge. This is not disputed by Ms Job, who also stated that she planted the trees (more than one) to make a hedge. 11 Although the bamboo plants were pruned shortly before the hearing, leaving them less than 2.5 metres tall, the Stebers have shown that they are indeed trees that rise to a height greater than 2.5 metres. Had the trees never reached that height, for instance by Ms Job continually maintaining them at a lower height from the time she planted them, then the Stebers would be unable to show that these particular trees rise to a height of at least 2.5 metres. I appreciate that earlier decisions of this Court, including my own, have dismissed applications where trees have been pruned prior to the hearing so that they are less than 2.5 metres tall. However the Trees Act does not restrict the present tense of 'rise' to a single moment in time. If the trees had not yet reached 2.5 metres but might do so in the future, they do not presently rise to that height. This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [53]-[59]. If they have reached 2.5 metres in height, they are trees that rise to 2.5 metres, even if they might not do so on the day of the hearing. This interpretation of s 14A is preferred as it promotes the objectives of the Trees Act, a matter discussed at greater length below from [34]. 12 According to s 14A, then, Part 2A of the Trees Act applies to Ms Job's bamboo hedge."
5. Having been cut on 1 October 2022, these trees did not rise to 2.5 m at the hearing, but the Applicants' photographs from 2019, and photographs in their application from May 2022, show bamboo growth outside the Applicants' upstairs living areas extending to a height some metres above the Applicants' gutters, akin to an impenetrable wall. This situation is more extreme but is consistent with the circumstances in Steber, and therefore, s 14A(1)(b) is satisfied. Consequently, Part 2A of the Trees Act applies to Ms Radford's bamboo hedge.
6. I am also satisfied that s 14B of the Trees Act is engaged as the Applicants applied for relief from an obstruction caused by the Respondent's bamboo hedge, which I found above to be made up of trees to which this Part applies, and which are situated on adjoining land.
7. The requirements of s 14C of the Trees Act have been satisfied, which in this case requires the Applicants to give notice of the application to the Respondent and the local council. The application was filed on 29 August 2022, and an affidavit of service lodged by Mr Pagin notes that the Tree Dispute Application (Exhibit A) and Tree Dispute Claim Details ((Exhibit B) were served on Eurobodalla Shire Council on the same date.
8. An affidavit of service lodged by Alan John Cooper, a licenced process server, displays that Ms Radford was served with the same application documents on 14 September 2022. Both parties attended the Initial Directions hearing on 17 October, where the Applicants were represented by Mr Pagin, and Ms Radford was self-represented.
9. 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.
10. A condition of s 14D(1) is that "…the obstruction occurs as a consequence of trees that are the subject of the application concerned."

Findings: Section 14E of the Trees Act

1. Section 14(E) of the Trees 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.
2. Mr and Mrs Welsh, at question 30 of Exhibit B, provided evidence of a chain of verbal and written requests for pruning the trees in 2015, 2018, 2019 and 2021, all of which resulted in no response, except for one pruning event in 2015 for which the Applicants' said they expressed gratitude to the Respondent, regardless of the fact that they considered the pruning insufficient to address their view and sunlight obstructions. Not until after the lodgement of the Welsh's Tree Dispute Application did Ms Radford address the bamboo issue. Ms Radford did not dispute this evidence at the onsite hearing.
3. Based on this chronology and the photographs supplied by the Applicants, I consider that the Applicants have displayed considerable restraint, and have certainly satisfied s 14E(1)(a), to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
4. Section 14(E)(1)(b) is satisfied as the Applicants have given notice of the application in accordance with section 14C.
5. The next step is the principle test under Pt 2A of the Trees Act; to assess the severity of the obstruction of sunlight to a window of a dwelling, and the severity of the obstruction of views from the Applicants' dwelling as a consequence of any or all of the trees in the hedge. I shall assess views initially.
6. Section 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.

Obstruction of views from a dwelling

1. Prior to considering the severity of obstruction of views from a dwelling, it is appropriate and necessary to return to Acting Commissioner Galwey's interpretation in Steber. At [34]-[45], he says; "[34] The jurisdictional test at s 14E(2)(a) requires the Court to be satisfied that the trees concerned are severely obstructing sunlight or a view. This Court has, in many cases, construed the grammatical use of the present progressive 'are obstructing' (leaving out the adverb 'severely' for the minute) as a test to be applied on the day of the hearing. In Tooth v McCombie [2011] NSWLEC 1004, the respondents pruned their trees after the application was made and before the hearing. Commissioner Fakes found at [14] that the use of the present tense implies 'at the time of the hearing.' "The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing." [35] I concur that the test does not refer to a future, as yet unrealised, view obstruction, but I am no longer convinced that 'are obstructing' implies 'at the time of the hearing', even though I have applied this interpretation myself until now. Given the potential consequences of such a change of mind, it is worth explaining. After all, the annotated version of the Trees Act, available for potential applicants and respondents in tree matters, includes reference to this well-used interpretation of s 14E(2)(a). [36] When assessing sunlight obstruction, the Court does not limit itself to the situation as found 'at the time of the hearing'. Trees might obstruct sunlight from the north only, during winter, but the hearing might take place during summer. Afternoon obstruction of sunlight might not be observed at a morning hearing. Nevertheless, the Court has made orders in these situations. The Court considers that, given the existing situation, a severe obstruction is something that has occurred and will most probably occur again. [37] I now read the words 'are severely obstructing' to be a state that, once reached, might continue to apply or recur. If a tired worker tells her colleague that her neighbour's dogs are disturbing her sleep, she is not saying it is happening at that moment; rather, she is describing an ongoing state of affairs that affects her life at present. It has happened, recently, and is likely to happen again, soon. Dictionaries describe this use of the present progressive tense as 'continuous'. [38] In the case of more than one possible interpretation of an Act's provisions, the Interpretation Act 1987 (NSW) ('the Interpretation Act'), at s 33, favours an interpretation that promotes the Act's underlying purpose (my italics for emphasis): 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. [39] The Interpretation Act then provides at s 34 more detail regarding when, why and how extrinsic material might be used to shed light on the meaning of a provision in an Act. To assist here, I refer to the Attorney General's 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the 2009 Review') and the 2013 Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (High hedge provisions) ('the 2013 Review'). The objective of the Trees Act, quoted in both reviews, is to provide 'a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. [40] Both reviews recognised that the jurisdiction regarding hedges must be strictly limited, reflected by the wording of Part 2A. Neither review noted any requirement for a jurisdictional test to be satisfied on the day of the hearing. Although the wording of Part 2A is carefully chosen to limit the jurisdiction, the underlying purpose of this Part is to provide, where appropriate, means for a land owner to seek and obtain orders to restore access to views or sunlight obstructed by a neighbouring hedge. The 2009 Review takes particular care to recommend that it must be the applicant, not a previous owner of their property, who has lost their view or solar access. However it makes no effort to pinpoint the day on which the obstruction must be found to be severe. [41] Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a). [42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order. [43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case. [44] The Stebers argued that Ms Job has demonstrated through her actions, or lack of action, that she cannot, or is not willing to, prevent her bamboo growing and obstructing their view. I accept this to be the case. Ms Job initially responded to the Stebers' request to restore their view with promises to prune the bamboo. Only minor pruning was done. Ms Job stated that she was unable to undertake the pruning herself, and she had great difficulty finding someone to do it. She submitted that contractors were put off by the heat during summer. This does not explain the two years it appears to have taken for adequate pruning to finally be done. [45] Having considered photographs, observations, the history of the matter and the submissions heard, I find Ms Job's hedge has caused a severe obstruction of the Stebers' view and that this is likely to be an ongoing state. I am satisfied that the trees, in this case bamboo, are severely obstructing the view from the Stebers' dwelling."
2. For assistance with interpreting "severely obstructing a view" (s 14E(2)(a)(ii)), it is again pertinent to consider the scope of the Trees Act, at page 35 of the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) in 2009 "The Court would only have the power to hear matters regarding (with my emphasis): • hedges which are both high, and similar to a wall in their visual effect. • hedges which affect people's homes (rather than their gardens or other structures on their property). • cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if 'enjoyment of property has been severely affected by a neighbour's trees blocking out sunlight' or 'enjoyment of property has been severely affected by a neighbour's trees blocking out a view'. • cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase. • hedges which are directly next door (not one or two properties over)."
3. Considering that each of these elements had been present prior to the Respondent's pruning of the hedge, the Applicants have demonstrated that the obstruction of views directly in front of their primary upstairs living areas was recently severe and that it had been severe without abatement for about five years.
4. While Ms Radford indicated that water views remained available to the Applicants across part of the Respondent's roof, and towards the south-east from a verandah at the south-east of the dwelling, the significance of living areas is prioritised for both views and sunlight. In Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140, a case from which the Court often takes guidance when considering view sharing, Roseth SC notes, at [26], that "..water views are valued more highly than land views..", and, at [28], "..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)". I do not consider the verandah to the south-east to be a normal living area.
5. Ms Radford made it obvious, both in her affidavit and by her conduct at the hearing, that she resented the Applicants' dwelling modifications which improved the Applicants' view, regardless of the fact that they were apparently undertaken in compliance with Council's requirements. Ms Radford made no submission to the contrary.
6. Although I don't doubt that Ms Radford may have felt more exposed and less private in her back yard after the Applicants' dwelling modifications, even before these works, in the absence of the hedge, it appears that the Applicants would have had considerable oversight into the Respondent's backyard.
7. On face value, therefore, the planting of the bamboo hedge by the Respondent, in particular through the informed selection of Giant Timber Bamboo which may be expected to reach a height of 20 m, appears to have been a contrived attempt to not simply gain privacy, but to significantly block the Applicants' most accessible and prized ocean views.
8. Consequently, given that the hedge has the capacity to reshoot and again grow into the Applicants' view at a rapid rate, I am satisfied that without invention, a severe view obstruction is likely to recur.
9. Applying the rationaIe from [42] - [45] of Steber to this situation, and having considered photographs, observations, the history of the matter and the oral submissions, I find Ms Radford's hedge has caused a severe obstruction of the Welsh's view and that this is likely to be an ongoing state. I am satisfied that the hedge is severely obstructing the view from the Applicants' dwelling. Consequently, s 14E(2)(a)(ii) of the Trees Act is engaged.

Obstruction of sunlight to a window of a dwelling

1. As noted at [36] of Steber, "when assessing sunlight obstruction, the Court does not limit itself to the situation as found at the time of the hearing". Regardless of the time of year that the hearing occurs, the sunlight obstruction at the winter solstice is normally evaluated, as light and warmth from the sun is generally most valued in winter. As with view assessment, the impact of the sunlight obstruction in living areas is prioritised, consistent with the consideration of overshadowing by local councils in their determination of development applications.
2. On this basis, the upper floor living areas were again prioritised as the lower level contained bedrooms, service rooms and a secondary billiard/ rumpus room. Considering that the hedge height had extended to some metres above the gutter, and the hedge was located quite close to the common boundary, I am also satisfied that it has caused a severe obstruction of sunlight to a window of a dwelling.
3. My conclusion is reinforced through assessment of the Applicants' shadow diagrams, and the fact that only one living area window need be severely obstructed to engage the jurisdiction. Therefore, s 14E(2)(a)(i) of the Trees Act is also engaged.

Balancing of interests

1. As s 14E(2)(a) of the Trees Act is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This requires assessment of relevant elements in s 14F to determine if: (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.
2. Regardless that Ms Radford pruned the hedge to near ground level prior to the hearing, about 3 m lower than the Applicants requested, I acknowledge the importance of the hedge's contribution to Ms Radford's privacy in her back yard (s 14 F(l)).
3. Notwithstanding this, given the history and nature of the dispute over a five-year period, and the fact that the bamboo has the propensity to rapidly regrow, and the obstructions thus to recur, the severity and nature of the obstruction is such that the Applicants' 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.
4. The orders I shall make comprise the total removal of the bamboo boundary hedge and replacement with alternative trees or shrubs, as I am not satisfied that an order to maintain the current bamboo hedge at or below a certain height is workable to resolve this dispute.

The other bamboo

1. The Applicants sought orders for the removal of additional clumps of Slender Weaver's Bamboo and manipulated the location of the bamboo in their site diagram in Exhibit B to at least infer that four clumps were growing in a fairly straight line parallel to the common boundary. On site, I was not persuaded that this is the reality.
2. I accept Ms Radford's submission that the bamboo clump growing close to her dwelling's back verandah is separate and is not part of a hedge, and that, being considerably larger than the hedge clump of the same species, it is likely to have been planted some time prior to the hedge. Though components of hedges do not need to be planted at the same time, nor be of the same species to satisfy the requirements of the Trees Act, a single tree planted separate from and prior to a hedge, cannot be deemed to be a member of a hedge that is planted at a later time.
3. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides commentary in an unsuccessful 'hedge' appeal under the Trees Act. At [43], his Honour, discussing the language of s 14A(1)(a), says (my italics for emphasis): "Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
4. Mr Pagin submitted that the definition of a hedge is quite broad and it should thus include all the bamboo but I do not accept this for the reasons explained in his Honour's commentary above, at [55].
5. For the same reason, a question from Mr Welsh as to "how much temporal separation between plantings must there be for a tree to be a member of a hedge" is, in these circumstances, asking the wrong question. Rather than the weeks, months or years between the initial and subsequent plantings, the intent to plant a hedge is a critical requirement to engage the jurisdiction. I am not satisfied that Ms Radford, in planting the initial bamboo next to her dwelling's verandah, did so with the intention of planting a hedge.
6. Mr Pagin also claimed that bamboo is a unique type of tree where each stem of the bamboo has the capacity to grow independently, and the stems are merely arranged in a clump, such that a bamboo plant should be considered a hedge in its own right.
7. Based on the same argument, a stem of a Willow or Poplar or Frangipani tree, amongst others, has the capacity to grow independently, but such claims made in previous cases under Pt 2A of the Trees Act have been consistently rejected. As each stem of clumping bamboo is and remains connected within the clump and the clump functions as a unit, I also reject this submission.
8. As a result, I consider the bamboo clump next to the dwelling's verandah to be a separate amenity tree, and the jurisdiction of the Trees Act does not extend to obstruction of sunlight or views as a result of amenity trees.
9. I am also not satisfied that the small clump of bamboo planted near the boundary about 4 m north of the hedge engages the jurisdiction. There is a wide gap between this plant and the hedge, such that I am not satisfied that it is a member of the hedge.
10. Even if I did consider it to be part of the hedge, its location to the north-east of the Applicants' dwelling is such that it is not likely to contribute to either a severe obstruction of views from the Applicants' dwelling, nor to a severe obstruction of sunlight to a window of the dwelling.

Conclusion

1. Based on the Applicants' submissions and photographs, I am satisfied that the Respondent's hedge, comprising two large clumps of bamboo planted parallel to the common boundary, had, prior to being heavily pruned, severely obstructed the Applicants' views from their dwelling and sunlight to a window of their dwelling. Because the hedge has the capacity to reshoot and again grow into the Applicants' view at a rapid rate, I am satisfied that without intervention, a severe view obstruction is likely to recur.
2. Applying the rationaIe from [42] - [45] of Steber to this situation, I find Ms Radford's hedge has caused a severe obstruction of the Welsh's view and of sunlight to a window of their dwelling, and that this is likely to be an ongoing state. Consequently, s 14E(2)(a)(ii) of the Trees Act is engaged, such that I may contemplate making orders.
3. Considering the history and nature of the dispute, the Applicants' photographs and my observations on site, I am satisfied that the dispute will not be adequately resolved in the absence of intervention with the hedge, regardless of Ms Radford's reasonable preference to maintain privacy in her back yard.
4. Given the hedge's extraordinary potential rate of regrowth, I am not satisfied that orders for pruning are appropriate. Rather, orders shall be made for removal of the bamboo hedge parallel to the boundary, and, should the Respondent desire, replacement with alternative trees or shrubs.
5. For the reasons explained above at [53]-[62], I am not satisfied that the large bamboo clump growing close to the Respondent's back verandah, nor the recently planted clump about 4 m north of the hedge, are members of a hedge. Therefore, in respect to these two trees, the Court has no powers to make orders.

Orders

1. For the reasons explained above, the orders of the Court are: 1. Within 60 days of the date of these orders, the Respondent is to remove the large clump of Bambusa textilis var. Gracilis and the large clump of Bambusa oldhamii which comprise the hedge along their western boundary. 2. The Respondent is to take any steps necessary to prevent regrowth of the bamboo hedge. 3. If the Respondent wishes to plant a replacement hedge along this boundary, it shall be planted at least 1.5 m from the common boundary and shall be maintained at a height no higher than 500mm below the level of the top of the Applicants' east side upstairs verandah balustrade. Any replacement hedge shall not include any species of Bamboo. J Douglas Acting Commissioner of the Court

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: 03 March 2023