Land and Environment Court New South Wales

• Medium Neutral Citation: Daley v Reid & anor; Flanagan v Reid & anor [2013] NSWLEC 1031
• Hearing dates: 26 February 2013
• Decision date: 26 February 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Applications dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; views; no severe obstruction
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Cavalier v Young [2011] NSWLEC 1080; Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Johnson v Angus [2012] NSWLEC 192; Tooth v McCombie [2011] NSWLEC 1004; Wisdom v Payne [2011] NSWLEC 1012
• Category: Principal judgment
• Parties: Ms I Daley (Applicant - 12/21157); Ms G Flanagan (Applicant - 12/21158); Mr R and Ms T Reid (Respondents - both matters)
• Representation: Applicant: Ms I Daley (12/21157) (Litigant in person); Applicant: Ms G Flanagan (12/21158) (Litigant in person); Respondents: Ms S Dyrting (Solicitor); Respondents: Bilbie Dan Solicitors
• File Number(s): 21157 of 2012; 21158 of 2012

Judgment

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

1 COMMISSIONER: These are two applications made by two neighbours in Belmont who own properties at the rear of the respondents' property. The applicants contend that two bamboo hedges and assorted palms severely obstruct, or are likely to severely obstruct, views of Lake Macquarie from their dwellings.

2 The applications are made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

3 The applicants are asking the Court to make orders requiring the respondents to prune the bamboo and other trees to a height of 2.5 metres and then maintain the plants at that height. The applicants are also seeking orders that the respondents pay their costs in making the applications.

4 The respondents have proposed alternative orders that the bamboo be pruned to 5 metres at the respondents' expense and that the applicants pay the respondents' costs.

5 Before dealing with the substantive matters, Commissioners do not have the jurisdiction to award costs. If any party wishes to apply for costs, a Registrar or Judge of the Court must hear a separate Notice of Motion.

6 In applications under Part 2A there are a number of jurisdictional tests that must be satisfied before the Court may make orders. The first of these is satisfaction of s 14A(1)(a), that is, are the trees the subject of the application planted so as to form a hedge?

7 The hearing commenced with an inspection of the trees on the respondents' land. The 'hedge' identified on the application claim forms as 'Bamboo 2' was quickly dismissed as that bamboo is growing on the adjoining property to the west of the respondents.

8 'Bamboo 1' on the diagram comprises three clumps of bamboo in the north-western corner of the property that Mr Reid, the first respondent, planted in 2006. Three individual pots of bamboo were planted at what I estimate to be 1.5 to 2m centres in a triangular formation. The clumps have extended and thickened up but do not form a continuous mass of stems at ground level. Mr Reid stated that he did not intentionally plant the bamboo as a hedge but rather as a privacy screen.

9 The diagram in the applications also shows five circles drawn in an arc across the rear of the respondents' garden and labelled as 'Coco' palms. The site inspection showed something quite different, being a group of plants in the north-eastern corner and a widely spaced planting along the western boundary fence. There were no Cocos palms but a mixture of Bangalow/Alexander palms, Cordylines and Strelitzia (palm-like plants).

10 In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of s 14A(1)(a); Moore SC and Hewett AC in Wisdom v Payne [2011] NSWLEC 1012 also consider what constitutes a hedge for the purpose of the Act.

11 In these matters, I find that the assorted palms and palm-like plants do not, in any ordinary understanding of the word 'hedge', and when viewed from the respondents' property, form a hedge for the purpose of the Act. In putting the applicants' case at its highest, I am prepared to accept that the bamboo, although planted as a screen, is planted so as to form a hedge. As it is in excess of 2.5m, the Court has the jurisdiction to proceed to consider the severity of the loss of views.

12 The next relevant jurisdictional test is satisfaction of s 14E(2)(a)(ii), which states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land. The view from the Daley property was inspected first.

13 The view Ms Daley contends was severely obstructed when she made the application is shown in the photograph attached to this judgment. The photograph shows approximately 20% of the available view to the south of Lake Macquarie somewhat obstructed by the respondents' bamboo (to right of centre). Other obstrictions arise from buildings or other vegetation.

14 Since the application was made, the respondents have pruned the bamboo to a height they consider maintains their privacy but is not the 2.5m sought by the applicants.

15 The part of the dwelling from which the view is said to be severely obstructed is the living room at the rear of the Daley residence. [I note that both the applicants' properties are up-slope of the respondents' property and the rear of the applicants' dwellings are elevated.] Ms Daley contends that both sitting and standing views of the portion of the Lake between the respondents' dwelling and the large Norfolk Island Pines closer to the lake-front are lost.

16 While s 14B of the Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the word 'are' requires the trees the subject of the application to be severely obstructing the view at the time of the hearing. This is discussed in Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15], with further discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52].

17 The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145; in essence, ' a view' is the totality of what can be seen from a viewing location and not a sliced up portion of that view.

18 The loss of view I observed from the Daley residence on the day of the hearing was negligible and in no way severe. Even prior to the trimming of the bamboo, the photograph from the application claim form illustrates that a substantial area of Lake Macquarie remained visible.

19 Therefore, as there is no severe obstruction of any view from the Daley property as a consequence of the bamboo on the respondents' property, the application is dismissed.

20 Ms Daley also raised the issue of debris from the bamboo falling into her pool. This issue has no relevance to the determination of the jurisdictional tests in Part 2A.

21 The Flanagan property shares a corner post with the respondents' property. This has been held to be adjoining land (Cavalier v Young [2011] NSWLEC 1080). The view, said to be obscured, is an oblique, standing view from the Flanagan kitchen and from elsewhere in the dining room, of part of Lake Macquarie.

22 While the potential view of the lake is somewhat more constrained from the Flanagan property than from the Daley property, there is still a substantial view of Lake Macquarie; the impact of the respondents' bamboo on that view is negligible.

23 Therefore, as there is no severe obstruction of any view from the Flanagan property as a consequence of the bamboo on the respondents' property, the application is dismissed.

24 The Orders of the Court are:

(1) Application 21157 of 2012 is dismissed.

(2) Application 21158 of 2012 is dismissed.

___________________

J Fakes

Commissioner of the Court

ANNEXURE A

Decision last updated: 27 February 2013