Land and Environment Court New South Wales

• Medium Neutral Citation: Hargreaves v Henry [2012] NSWLEC 1036
• Hearing dates: 15 February 2012
• Decision date: 15 February 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The respondent is to prune all bamboo along the western boundary and along the northern boundary within nine metres of the northwest corner of the property, to a height of no more than six metres, within one month of the date of these orders.

(2) In March of every year, beginning in 2013, the respondent is to prune all bamboo along the western boundary and along the northern boundary within nine metres of the northwest corner of the property, to a height of no more than six metres.

(3) The applicant is to allow access as necessary for the works in (1) and (2) at reasonable times of the day given reasonable notice by the respondent.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; pruning ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr M Hargreaves and Mrs D Hargreaves (Applicants); Mr D Henry and Mrs L Henry (Respondents)
• File Number(s): 20980 of 2011

Judgment

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

1 Mr & Mrs Hargreaves purchased their house in Mosman in 1999. Since then, they contend, a bamboo hedge on a neighbouring property has grown to obstruct their view of the bushland reserve and the harbour. Under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 , they seek orders for the bamboo to be reduced and maintained at a height of five metres.

2 Mr and Mrs Henry, who own the land on which the bamboo grows, planted the bamboo for visual screening and privacy. They recently pruned a small section of the bamboo to a height of five metres, but do not wish to reduce the remainder of the bamboo to that height.

3 I must determine if the bamboo is a hedge according to s 14A(1) of the Act, if it is causing a severe obstruction to a view and, if so, what orders would be appropriate.

Onsite hearing

4 The hearing began on the respondents' property. Mrs Henry took us to her son's bedroom and daughter's bedroom and balcony respectively, showing the need for privacy. Units to the rear of their property could be seen from the window in her son's bedroom. The bamboo provides screening to the lower units but not to the unit on the top floor. The Hargreaves' balcony could be seen from the window to her daughter's bedroom and the outside balcony. The bamboo provides no screening between the bedroom window and the Hargreaves' balcony. It provides partial screening between the daughter's balcony and one end of the Hargreaves' balcony.

5 A height pole was used to measure the bamboo, which is Slender Weaver's Bamboo ( Bambusa textilis var. gracilis ). The recently pruned section is five metres tall; the remainder is up to eight metres tall.

6 The Hargreaves then took us to the view from their rear balcony, which they contend is obstructed by the bamboo. The tops of the bamboo partially obstruct a view of the bushland reserve across the small valley. Regardless of the bamboo, only a small water view would be available at one end of the overall view, and that view would also be partially obstructed by the Jacaranda in the neighbouring block of units, and by another tree further distant.

7 The pruned section of bamboo, at five metres, allows a view not only of the bushland, but also of the rooftops in the foreground.

8 A Chinese Elm on another neighbouring property has also been pruned. This would have previously provided some further screening to the Henrys' property but also partially obstructed the view.

Is the bamboo a hedge?

9 Bamboo is a tree according to the definitions included in the Act. There are several bamboo plants that have been planted closely in a linear fashion so as to form a hedge. They rise to a height of more than 2.5 metres. Therefore according to s 14A(1), Part 2A of the Act applies to these trees.

Does the Court have jurisdiction?

10 With regard to an obstruction of views, the Act states at s 14E(2)(a)(ii) that the Court must not make an order unless satisfied that the trees concerned are severely obstructing a view from a dwelling on the applicant's land.

11 Furthermore, the Court must also be satisfied at s 14E(2)(b) that the applicant's interest in dealing with the severity and nature of the obstruction outweighs other matters that may make interfering with the trees undesirable.

12 Given the density of development in the area, it is unlikely that all dwellings will have uninterrupted views of bushland or the harbour. Also, as new development occurs, it is unreasonable to expect that there will be no impact on those views.

13 The Hargreaves view is mainly of the bushland reserve. The water view was only a very small part of this view and is also obscured by other trees. Those trees, and trees in general, contribute to the amenity of the neighbourhood.

14 The bamboo does cause an obstruction of the bushland view. At its highest it may even be called a severe obstruction, at least for the section along the western boundary and along the northern boundary, east to the edge of the Jacaranda.

15 Any undesirability of interfering with the bamboo concerns the issues of privacy for the respondent. However, that privacy could still be retained with some pruning. I see no need for the applicants to have views of rooftops. It is the bushland views they emphasised at the hearing. Reducing the bamboo to five metres may restore the bushland view, but would also remove some privacy afforded to the respondents from the units. Pruning to six metres would restore the view temporarily. The bamboo would then grow back and begin to partially obstruct the view. Annual pruning back to six metres would, in my mind, prevent any severe obstruction in the long term while maintaining most of the respondents' privacy provided by the hedge. The bamboo would tolerate this type of pruning.

16 There are no other matters under s 14F of the Act that would make the ordering of such pruning inappropriate.

Conclusions

17 I conclude that the bamboo hedge causes a severe obstruction of the bushland view and the Court's jurisdiction is enlivened.

18 Annual pruning can mitigate the severity of the obstruction of the applicants' view without detracting significantly from the respondents' privacy and without affecting the other benefits offered by the bamboo. Only the bamboo to the west of the Jacaranda's crown requires such pruning, as beyond this there would be minimal improvement to views achieved by pruning.

Orders

19 Therefore the orders of the Court are:

(1) The respondent is to prune all bamboo along the western boundary and along the northern boundary within nine metres of the northwest corner of the property, to a height of no more than six metres, within one month of the date of these orders.

(2) In March of every year, beginning in 2013, the respondent is to prune all bamboo along the western boundary and along the northern boundary within nine metres of the northwest corner of the property, to a height of no more than six metres.

(3) The applicant is to allow access as necessary for the works in (1) and (2) at reasonable times of the day given reasonable notice by the respondent.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 February 2012