Land and Environment Court New South Wales

• Medium Neutral Citation: Guttenberg &anor v Taylor & anor [2013] NSWLEC 1110
• Hearing dates: 21 June 2013
• Decision date: 28 June 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of view
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Regulation 2007
• Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Haindl v Daisch [2011] NSWLEC 1145; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: M & J Guttenberg (Applicants); P & K Taylor (Respondents)
• Representation: Applicants: M & J Guttenberg (Litigants in person); Respondents: P & K Taylor (Litigants in person)
• File Number(s): 20306 of 2013

Judgment

1 COMMISSIONER: The applicants in this matter contend that bamboo planted on the respondents' property severely obstructs views from their dwelling. They have applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the removal of the bamboo.

2 The applicants are also concerned that some recently planted bamboo to the north of the bamboo in question may eventually block views in this direction from their dwelling.

3 The respondents do not wish to remove the bamboo as they value the plants for a number of reasons including the privacy it affords their dwelling.

Jurisdictional tests

4 In applications made under Part 2A of the Act, there are a number of jurisdictional tests that must be satisfied in order to engage the Court's jurisdiction to make orders under s 14D of the Act.

Does Part 2A apply to the trees the subject of the application?

5 Section 14A(1)(a) states that Part 2A applies only to groups of two or more trees that are planted, whether in the ground or otherwise, so as to form a hedge.

6 Section 4 of the Trees (Disputes Between Neighbours) Regulation 2007 prescribes 'bamboo' as a tree for the purpose of the Act.

7 The bamboo in question is planted in the ground at the top of a retaining wall at the rear of the respondents' property in the portion of the retaining wall that adjoins the applicants' property. The spacing and arrangement of the bamboo is such that I am satisfied that the trees are planted so as to form a hedge.

8 As the plants rise to a height of more than 2.5m above existing ground level, s 14A(1)(b) is also satisfied.

9 Therefore, I can consider the next relevant jurisdictional tests in s 14E(2).

Are any of the trees concerned, severely obstructing a view from the applicants' dwelling?

10 When the applicants purchased their property in 2005, they contend that they had views across the bushland valley generally to the east/ northeast. Photographs included in the application, taken when they first moved in from some of the viewing points in question, show the trees in the bushland valley above the ridgeline of the respondents' dwelling.

11 The rear northern portion of the applicants' property adjoins the respondents' property and the southern portion adjoins a bush reserve on Crown land.

12 There is disagreement between the parties as to when the bamboo was planted, the applicants contend it was planted in about 2008, the respondents state it was planted in 2003 after the completion of the retaining wall. In photographs in the application claim form, said to be taken in 2005 and in 2006/2007 from the applicants' dwelling, the bamboo is not discernable. While nothing necessarily turns on this, the parties raised it as an issue.

13 The eastern façade of the applicants' dwelling essentially comprises windows and glass doors. The nominated viewing positions are, from north to south, V1 from the main bedroom, V2 the sunroom, and V3 the open plan living/dining/lounge room.

14 The view from the bedroom, V1 is primarily to the east across the applicants' backyard to the bamboo in question, as the bamboo is directly opposite this window. However views, unobstructed by the bamboo, of the valley to the northeast and southeast are possible.

15 From V2, the sunroom, I observed sitting and standing views of the Loftus ridgeline to the east through and above the bamboo. As with V1, views to the northeast and southeast are available from this area.

16 V3 is the principal living area. This part of the applicants' dwelling is opposite the boundary of their property and the adjoining Crown land. The contested view is to the northeast across the bamboo. As with V2, the ridgeline of Loftus is visible above and through the bamboo, and there are generally unobstructed views of the bushland valley to the north of the bamboo. The views across the Crown land bushland are somewhat filtered by vegetation on the applicants' property. I estimate about 35% of the potential view of the valley from V3 is obscured by the respondents' bamboo.

Findings

17 Section 14E(2)(a) 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.

18 Therefore, the Court must first determine whether there is a severe obstruction of a view from a dwelling, and then if there is, consider the balancing of the parties' interests. Only if there is a severe obstruction, and only if the applicants' interests outweigh other considerations, can the Court consider what orders it should make under s 14D.

19 Relevant here is s 14E(2)(a)(ii). The use of the word 'are' requires that the trees concerned be severely obstructing the view from the applicants' dwelling at the time of the hearing. This is discussed in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[42].

20 The use of the word 'severely' sets a high bar in terms of the extent of the obstruction caused by any of the trees to which Part 2A applies. The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions...hard to endure... Therefore, the obstruction must be considerable.

21 The Court has often used the hierarchy of impact in the Planning Principle on view sharing and the impact on neighbouring properties published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The scale ranges from negligible, minor, moderate, severe, to devastating.

22 The assessment of severity involves both qualitative and quantitative elements, applied in the particular circumstances of the matter. In this regard, the assessment process Tenacity has been used to assist this determination.

23 The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At [26] the Commissioners in that matter state:

26 However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the dwelling location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the view from a particular viewing location on some incremental, slice by slice basis.

24 In maintaining the Court's consistent approach in assessing the view loss, in particular, considering the full extent of the view available from the dwelling, the applicants are able to see the valley to the north/northeast, views across the Crown land, and distant views of the Loftus ridgeline to the east. While I accept that the applicants' views of the bushland valley to the east, particularly from V1, are obstructed by the respondents' bamboo, I am not satisfied that the obstruction is to the level prescribed in the Act, that is -severe. Overall, I would assess the obstruction as moderate. While some thinning or shortening of the bamboo would improve the applicants' outlook, it is not something the Court can order as its jurisdiction to do so is not engaged.

25 In regards to the applicants' concerns about the recently planted bamboo and future loss of the view to the north, s 14E(2) of the Act is limited to the obstruction at the time of the hearing. Whether that may change in the current review of the Trees Act, is impossible to know.

26 As with any applications under the Trees Act, should the circumstances change, the applicants can make a second application.

27 Therefore as a consequence of the foregoing, the Orders of the Court are:

(1) The application is dismissed.

________________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 28 June 2013