Land and Environment Court New South Wales

• Medium Neutral Citation: Howard & anor v Enis & anor [2013] NSWLEC 1147
• Hearing dates: 5 August 2013
• Decision date: 13 August 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; pruning of bamboo ordered

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; shadow diagrams
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Regulation 2007
• Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mr H and Mrs M Howard (Applicants); Dr J and Mrs J Enis (Respondents)
• Representation: Applicants: H & M Howard (Litigants in person); Respondents: Ms M Taylor (Solicitor); Respondents: Bartier Perry
• File Number(s): 20116 of 2013

Judgment

1 COMMISSIONER: The applicants in these proceedings contend that bamboo growing in their neighbours' back garden severely obstructs both sunlight to several windows of their dwelling and views from their dwelling. The have applied under s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the removal of the bamboo or its reduction to a height of 3m.

2 The respondents oppose any orders to reduce the bamboo below 6m as they value the plants as a privacy screen. In response to the application the respondents seek to claim legal costs, compensation for the cutting of bamboo stems, compensation for stress, orders for compliance with approved plans, treatment of the applicants' balcony, relocation of the dividing fence, and orders to prevent future interference with the bamboo by the applicants.

3 In regards to these alternative orders, Commissioners do not have the jurisdiction to award legal costs and similar. Similarly, should the Court's jurisdiction to make orders under s 14D be engaged, the orders sought by the respondents are not capable of being made under this Part or in this area of the Court's jurisdiction.

Jurisdictional tests

4 In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is s 14A(1)(a), which requires the trees to be planted so as to form a hedge. If this is the case, s 14A(1)(b) requires the trees to be at least 2.5m tall before the Court can further consider the matter.

5 The trees in question comprise a planting of bamboo in a narrow garden bed between the respondents' pool and the dividing fence between the parties' properties. The clumps of bamboo were planted in early 2009.

6 Section 4 of the Trees (Disputes Between Neighbours) Regulation 2007 prescribes bamboo as a 'tree' for the purpose of the Act. It is common ground between the parties that the bamboo is planted so as to form a hedge. The plants were measured at the hearing to be on average about 7m tall with plants towards the western end about 5m tall. With the benefit of the site inspection, I am satisfied that Part 2A applies to the trees the subject of the application.

7 The next relevant jurisdictional tests are found in s 14E(2). 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.

Sunlight

8 The applicants contend that the bamboo severely obstructs sunlight to five nominated windows on the ground floor of their two-storey dwelling. The relevant windows are:

• W1 - north facing window, informal dining area off kitchen, approximately 2m from side boundary;
• W2 - west facing window, informal dining area;
• W3 - north facing glass doors, family room, opening onto paving, set back approximately 4.5m from side boundary;
• W4 - west facing glass doors, family room opening onto back garden;
• W5 - north-facing kitchen window; relatively small, approximately 900mm from side boundary fence.

9 There are two other kitchen windows (shown on shadow diagrams as W6 and W7) however these are not part of the application. The windows of the rear first floor bedroom are not in contention for this element of the application.

10 Both parties had shadow diagrams prepared. Ms Pam Walls who prepared the applicants' shadow diagrams was present at the hearing. The respondents' diagrams also portray what they contend are the privacy issues that would arise should the bamboo be reduced. The respondents engaged Mr Michael Neustein, Architect and Planner, to amongst other things, prepare comments on the shadow diagrams prepared by both parties. Mr Neustein was present at the hearing.

11 In addition to the shadow diagrams, the parties tendered photographs of the shading of the nominated windows. The applicants' photographs show the shading of, and varying degrees of dappled sunlight on, W1 at approximately 1.00pm on 23 April, 17 May, and August 4 2013. The respondents' photographs, taken on 1 August 2013, show shading and dappling of various windows at a number of times of the day.

12 All shadow diagrams include the shadows cast by the parties' properties and without the bamboo. The applicants' diagrams show the bamboo modelled with uniform heights of 3m, 3.5m, 4m and 4.5m for 22 June and 22 April for the hours of 10.00 am, 11.00am, 12.00 pm, 1.00pm, 2.00pm and 3.00 pm.

13 The respondents' diagrams show the bamboo modelled at 4m and at a staggered height of 6.1-5.5m to indicate the form of the bamboo and illustrate a more dappled effect. The diagrams are for 21 June, hourly from 9.00 am until 4.00pm. The respondents' diagrams also show sight lines from an eye height of 1.65 m from various positions from within the respondents' garden and dwelling back to the applicants' upstairs bedroom window and associated balcony.

14 Mr Neustein agrees that absent the shadows due to the bamboo screen, the applicants' north and west facing windows of the interlinked rooms (kitchen, casual dining and family rooms) obtain more than 3 hours of sunshine between 9am and 3pm at the winter solstice which is compliant with the Woollahra Development Control Plan 2003 (WDCP).

15 After calculating the combined area of the windows and the room and assuming a dappling effect of sunlight due to the bamboo of 50%, he opines that the room will remain essentially a sunny room even with a 6.1m high bamboo screen. He offers other opinions on the planning controls for privacy in the WDCP and the construction of the applicants' dwelling.

Submissions - sunlight

16 The applicants submit that the bamboo severely obstructs sunlight to windows of their dwelling, in particular the north facing windows associated with the kitchen, casual dining and family rooms.

17 They maintain that the alterations they made to the dwelling were built within the council controls and were designed to take advantage of the northern aspect and sunlight that was available to them at the time. The applicants contend that the additions were sited to minimise the impact on neighbours. The applicants also consider that the August 2013 photographs taken shortly before the hearing show more dappled light that may indicate some thinning of the bamboo.

18 The applicants conceded that given the cost of installing the bamboo it would be unreasonable to seek its removal, however they maintain their position that pruning to a height of 3m is reasonable.

19 The respondents contend that their two-storey dwelling was there before the applicants extended their property and that prior to those works, the respondents enjoyed the benefit of not being overlooked by other nearby properties. As a consequence of the second floor addition to the applicants' dwelling, (which they contend is not in accordance with the approved plans), the respondents considered the back garden and pool as well as parts of the ground floor family room and upstairs bedroom windows were unacceptably exposed to overlooking from the applicants' property.

20 The first respondent's affidavit states that the applicants' architect suggested planting bamboo along the boundary, especially given the limited space between the existing pool and the dividing fence.

21 At the hearing, Ms Taylor for the respondents argued that as privacy screens or other devices were not installed on the upper storey of the applicants' dwelling, the respondents employed what was described as the 'Woollahra solution' by providing their own privacy. This is a reference to the many hedges on nearby properties.

22 Ms Taylor contends that in balancing the desires of the applicants with the concerns of her clients, the applicants have an abundance of windows and sun. She submits that the respondents are adamant that the bamboo is essential for their privacy but would accept pruning the bamboo to 6m

Findings - sunlight

23 The parties' shadow diagrams are generally consistent in the degree of shadowing on the winter solstice (21/22 June). My determination is based on this period, as shadow diagrams are available from both parties for this date, and the fact that most council/ building controls refer to this period in their controls for solar access. While the applicants' diagrams show heights no more than 4.5m, it is clear that any additional height will create more shading. As the photographs provided by the parties were taken close to the time of the hearing, these are also of some value in determining the jurisdictional test in s 14E(2)(a)(i).

24 The respondents' shadow diagrams which show shadows cast by plants between 5.5 and 6.1m (being less than the actual height) indicate a severe obstruction of sunlight to most windows as a consequence of those plants.

25 While the August 2013 photographs tendered by both parties indicate that there appears to be more filtered/ dappled sunlight through the bamboo that in previous months, I am satisfied that the bamboo at its current height, is severely obstructing sunlight to all of the nominated windows except W4.

26 Therefore, for W1, W2, W3 and W5, s 14E(2)(a)(i) is satisfied. The next step is to consider the balancing of interests inherent in s 14E(2)(b). This in turn requires consideration of the discretionary matters in s 14F.

27 Relevant matters under s 14F:

(a) The bamboo is located in a narrow planting strip that was created for the purpose by cutting through existing paving between the pool and the dividing fence. The limited distance between the pool and the fence restricts the width of the bed and the type of plants suitable for the location.

(b)(c) The trees were planted after the alterations and additions to the applicants' dwelling and have grown to their current average height of about 7m in the four years or so since they were planted.

(e) While the plans of the applicants' dwelling included in the first respondent's affidavit show the north facing rear bedroom windows to be narrower than the window as built, there is nonetheless a window in that location and a balcony with no screening. There are no other plans or conditions of consent in evidence to indicate that there were any requirements for screening or landscaping on the applicants' land.

(h)(l) The bamboo contributes to the scenic value of the respondents' land and is particularly valued for the privacy it affords their property (see further discussion below). With the expertise I bring to the Court, I note that this is a plant commonly recommended as a quick growing dense screen.

(k) The individual bamboo stems or culms can be pruned and reduced in height or, alternatively individual stems can be removed at ground level from the base of the clumps.

(m) The parties' shadow diagrams clearly identify the shadow produced by each of the dwellings. The proximity of W5 to the side fence and the respondents' dwelling and its relatively small size mean that even in the absence of the bamboo, this window receives much less direct sunlight than the windows of the casual dining area and the family room.

(o) The respondents' shadow diagrams that show the bamboo as modelled at 5.5-6.1m (somewhat less than its current height) indicate that only the top of W3 receives some slivers of direct sunlight between 11.00am and 2.00pm. The diagram indicates that the bamboo at that height blocks all direct sunlight to W1, W2 and W5. While the photographs indicate some dappling, the shading is significant. The applicants contend that the sunlight is obstructed from April to August.

(p) The bamboo is evergreen.

28 The respondents' main concerns go to protecting their privacy, in particular with respect to, views from the applicants' first floor bedroom and balcony to the respondents' back garden, to the family room through skylights, and views into the two first floor rooms at the rear of the respondents' dwelling. The respondents also pointed out the potential views to their first floor rooms from the applicants' back garden.

29 With the benefit of the site view, I am not satisfied that the respondents' concerns about privacy outweigh the loss of sunlight to the applicants' dwelling.

30 The top floor rooms of the respondents' dwelling are currently used as painting and drawing studios. Even if the rooms were to be used as bedrooms, it would be usual, given the elevated position of these rooms, for blinds to be drawn at various stages of use. The views from the applicants' top floor balcony are restricted, oblique views to limited front sections and corners of those rooms.

31 In regards to views from the applicants' first floor bedroom windows and balcony through the skylight and also into the backyard, I note that the balcony is narrow and its principal aspect is west. While absent the bamboo someone could stand and look into the respondents' back garden (to the northwest), I accept the applicants' statements that the principal function of the balcony is to provide shade to the bedroom and its use is generally limited to cleaning activities. I am not convinced that the fear of someone looking from the bedroom through the skylight into the small portion of the respondents' living room that would be visible outweighs the loss of sunlight to the applicants' principal living areas.

32 While the respondents clearly enjoyed the absence of nearby two storey dwellings for some time, it would be unreasonable to assume that this state of affairs would continue in this part of Sydney on relatively small blocks. Complete privacy in such residential areas is an unrealistic expectation. While the planting of hedges is an accepted means of creating privacy from neighbours, it may have unintended consequences. These consequences can include the reasons why the Trees (Disputes Between Neighbours) Act 2006 was amended in 2010 to include Part 2A.

33 In regards to Mr Neustein's comments, while the Court has on occasion considered council controls, in this matter I find the evidence of the shadow diagrams to be more compelling.

34 If W5 were the only window affected, the proximity of that window to the respondents' property and its relatively small size would lead me to conclude that interfering with the bamboo would not be warranted. However, I am satisfied that W1, W2 and W3 are so obstructed as to justify some intervention with the bamboo.

35 After considering both parties' shadow diagrams, I consider a height range of 3.5-4.5m to be a height that permits direct sunlight to W1, 2 and 3 and retains the screening function of the bamboo from the ground floor of the applicant's property.

36 I note the respondents' comments that squaring off the bamboo to an even height would be out of character with the form of the plant. I agree. I propose to order that 60% of the stems/culms be pruned to a height of 4m, 20% to 4.5m and 20% to 3.5m. That is, for every 10 stems, 6 will be pruned to 4m, 2 to 3.5m and 2 to 4.5m. This pattern of pruning is to be applied to the full length of the bamboo hedge.

37 In regards to the timing, in order to provide the applicants with some relief, and to stage the impact of the pruning on the plants, orders will be made for the first pruning to be carried out within 30 days of the date of these orders. This initial pruning will require all stems in excess of 6m to be reduced in height: 50% to 4.5m and 50% to 4m. This is to be carried out in a way that creates a more natural distribution of foliage height and applies to the full length of the row of bamboo.

38 However, as winter sun is the main issue, the entire bamboo hedge will be required to be pruned to the heights specified in paragraph [36] within the first two weeks of May on an annual basis commencing in May 2014 until such time as the bamboo is removed.

39 All pruning is to be carried out at the respondents' expense.

Views

40 The applicants contend that prior to the planting of the bamboo they enjoyed views of trees in nearby properties, the distant ridgeline and sky above, and other elements of the neighbourhood from W1, W2, W3, and W5 as well as from the upstairs bedroom. They contend that the views to the north and northwest are severely obstructed by the bamboo.

41 Ms Taylor submits that the views from the applicants' property could best be described as close district views and not views of any value that would lead the Court to order any intervention with the bamboo.

Findings - views

42 I am not satisfied that the views from the upstairs bedroom are severely obstructed by the respondent's bamboo, however, as a consequence of the orders in regards to pruning for sunlight, the views from the first floor will be improved.

43 The view from W2 is principally to the west and not severely obstructed by the bamboo. I agree with the applicants that the bamboo severely obstructs views to the north from W1, W3 and W5 of the respondents' property and beyond. In this regard, s 14E(2)(a)(ii) could be said to be satisfied. While the pruning required for sunlight will permit more views of the sky, the views to the north from the ground floor rooms are still likely to be obscured.

44 However, in considering the balancing of interests in s 14E(2)(b) I am not satisfied that the applicants' interests in obtaining the views they had prior to the planting of the bamboo, which would generally be met by pruning the bamboo to 3m, outweigh the need to retain a reasonable degree of privacy for the respondents.

45 In view matters, when determining the competing interests, the Court generally has regard to the principles of view sharing discussed in the Planning Principle in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. Inevitably, there must be a subjective and qualitative assessment of the relative importance of the view and the competing interests of the respondents.

46 In this matter, I agree with Ms Taylor that the views are ordinary residential views. While the applicants clearly enjoyed those views, they are not views that would warrant any further reduction in the respondents' plants.

47 Therefore, with respect to the application concerning the obstruction of views, that element of the application is dismissed.

Orders

48 As a consequence of the foregoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these Orders, the respondents are to engage and pay for an AQF level 3 horticulturalist or arborist to prune the row of bamboo along the rear southern boundary of 68 Balfour Road, Bellevue Hill in accordance with paragraph [37] of this judgement.

(3) Commencing in May 2014, and on an annual basis until such time as the bamboo is removed, the respondents are to engage and pay for an AQF level 3 horticulturalist or arborist to prune the row of bamboo along the rear southern boundary of 68 Balfour Road, Bellevue Hill in accordance with paragraphs [36] and [38] of this judgement.

________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 13 August 2013