Land and Environment Court New South Wales Medium Neutral Citation: Hatherly v Georgalas [2020] NSWLEC 1562 Hearing dates: 20 August 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted. (2) The respondent is to remove, within 30 days of the date of these orders, all bamboo on his property along his southern boundary, and then take any action required to prevent the bamboo regrowing. (3) If the respondent establishes any hedges along his southern or eastern boundaries, he is to use species that grow to a height of no more than 2.5 metres at maturity. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of views – whether the obstruction is severe – the bamboo has been pruned – orders for removal – orders to restrict the height of future hedges Legislation Cited: Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2019 Cases Cited: Steber v Job [2019] NSWLEC 1308 Texts Cited: Lake Macquarie City Council, 'Tree Preservation and Native Vegetation Management Guidelines' Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' (July 2020) Category: Principal judgment Parties: Barry Richard Hatherly (Applicant) Steven Michael Georgalas (Respondent) Representation: B Hatherly (Litigant in person) (Applicant) S Georgalas (Litigant in person) (Respondent) File Number(s): 2020/125265 Publication restriction: No Judgment Background to the application 1. The residential property belonging to Barry Hatherly ('the applicant') backs on to Dora Creek, west of Lake Macquarie. The owner of the neighbouring property, Steven Georgalas ('the respondent') planted bamboo near the common boundary. The bamboo grew up and into the view from Mr Hatherly's dwelling. Mr Georgalas does not live at his property, but his father, Michael Georgalas, lives there. 2. The relationship between Mr Hatherly and Michael Georgalas is neither friendly nor cooperative. Mr Hatherly has asked Michael Georgalas to prune the bamboo, without success. He subsequently applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the bamboo to be pruned and maintained at a height of 2.5 metres, and for a root barrier to be installed. 3. After receiving the application, Steven Georgalas pruned the bamboo to a height of approximately 1.8 metres. The hearing 1. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, to be considered along with the parties' submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection. 2. Mr Hatherly's application included photographs of the bamboo before it was pruned. Mr Georgalas did not file any material with the Court. Both parties were self-represented. 3. Mr Hatherly's initial application incorrectly nominated Michael Georgalas as the respondent. Leave was granted to amend the application to remove Michael Georgalas as respondent and to add Steven Georgalas as respondent. Framework for this decision 1. For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met: * The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act); * The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1)); * The trees must be severely obstructing either sunlight to a window of the applicant's dwelling, or a view from the dwelling (s 14E(2)(a)); and * The obstruction is such that the applicant's interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). 1. Mr Hatherly's application also sought remedy on the basis of other nuisance caused by the bamboo: debris falling onto his property, and bamboo shoots growing on his side of the boundary fence. Bamboo shoots have affected the alignment of pavers on his property. For the Court to make orders to remedy or prevent damage caused by a neighbouring tree, an application under Pt 2 of the Trees Act is required, but Mr Hatherly's application is only made under Pt 2A. Although the Court can only make orders to remedy or prevent obstruction of sunlight or views in a Pt 2A application, the Court must weigh the applicant's interests against the benefits of the trees. In doing so, matters at s 14F of the Trees Act must be considered, including s 14F(s): "such other matters as the Court considers relevant in the circumstances of the case." The bamboo forms a hedge 1. The application concerns bamboo growing on the respondent's property along the common boundary shared with the applicant. Bamboo is a grass, but according to the Trees (Disputes Between Neighbours) Regulation 2019, it is a tree for the purposes of the Trees Act. 2. Mr Hatherly stated in his application that the bamboo was 8–10 metres in height. Photographs in his application confirm the bamboo was at least 8 metres tall. It formed a dense screen along the common boundary. 3. I am satisfied that the bamboo is planted so as to form a hedge that rises to a height of 2.5 metres, even if it was not 2.5 metres tall at the time of the hearing (as per Steber v Job [2019] NSWLEC 1308 at [11]). It is not clear how many individual plants are in the hedge. The applicant made reasonable effort 1. Mr Hatherly believed Michael Georgalas was the owner of his property, and initially nominated him as the respondent to his application. His efforts to address the bamboo issue were therefore directed towards Michael Georgalas rather than his son Steven, who owns the property. 2. Mr Hatherly first raised this issue with Michael Georgalas in early 2018. In his application, he stated that his wife also rang and spoke to Michael's wife in 2018. He submitted that any response was always hostile. In the meantime there were disputes about other issues, but nothing was done about the hedge. 3. Considering the obvious difficulties these neighbours have relating with each other, I am satisfied that Mr Hatherly's efforts to reach some agreement over the bamboo's height were reasonable. The bamboo severely obstructs views from the applicant's dwelling 1. Mr Hatherly's photographs show the bamboo before it was pruned. From his dwelling, Dora Creek can be seen past his rear boundary, to the east. These properties have long side boundaries, so the tall dense screen of bamboo along his northern boundary obstructed a broad section of his view to the northeast. While part of the view remains, the impact on the overall view was severe. There were no glimpses available through the bamboo. Rather, it was like a tall wall along the boundary, screening off any view of the creek, the vegetated landscape beyond, and the horizon. From the rear deck on the upper level of his dwelling, the impact was such that I find the bamboo caused a severe obstruction of the view. 2. At the time of the hearing, the bamboo had been pruned to approximately fence height. Until this recent pruning, the bamboo had obstructed the view for some time. Bamboo grows quickly, and it is likely that this bamboo will grow into the applicant's views again shortly. The respondent submitted that he was unaware of the issue until receiving the application, but he now intends to maintain the bamboo. Circumstances indicate this is less than probable: he took no action prior to Mr Hatherly's Court application; despite clear directions from the Court, he filed no response outlining any such proposal to maintain the hedge; and the task of maintaining this hedge is likely to be onerous. I find it is more likely that the bamboo will again grown into the applicant's views. 3. The view obstruction caused by the bamboo is therefore an ongoing state of affairs. That being the case, orders can be made, even if recent pruning has temporarily removed the bamboo's impact on views. This is similar to the situation found in Steber v Job, where bamboo that was pruned prior to the hearing was found to severely obstruct a view. 4. As a result, despite the recent pruning, I find the bamboo severely obstructs the view from the applicant's dwelling. Should orders be made to address the view obstruction? 1. Having found that the bamboo causes a severe view obstruction, I can make orders if the applicant's interests in remedying the obstruction outweigh reasons against interfering with the trees (s 14E(2)(b) of the Trees Act). Relevant matters that must be considered are included at s 14F. The location of the trees 1. The hedge is planted against the common boundary, beginning a short distance from the rear corner of the applicant's dwelling, and extending some 10 or more metres along this long boundary, towards the creek. When did the hedges obstruct the views? 1. When the applicant purchased his property in 2017, the bamboo did not obstruct his views. Indeed, a photograph taken at that time shows the bamboo could not even be seen above the fence. The view obstruction has developed while Mr Hatherly has lived at his dwelling. Consent would not be required 1. No evidence was adduced regarding the need for local government consent, but the bamboo does not fall within any of the four criteria for trees requiring consent for removal in Lake Macquarie City Council's 'Tree Preservation and Native Vegetation Management Guidelines'. Permission would not be required under any other Acts. Benefits and value of the trees 1. The bamboo contributes to amenity and privacy on the respondents' property. It provides visual screening between their garden and properties to their south. Such privacy could be achieved with vegetation at a significantly lower height. The bamboo has no particular significance in any other criteria that might provide reasons to avoid interfering with it. The impact pruning would have on the trees 1. Bamboo regrows quickly. Its long-term viability is generally not impacted by pruning. Other factors contributing to view obstruction 1. There is nothing else contributing to the obstruction of this part of the applicant's view. If not for the bamboo, the applicant would have broad landscape views. Steps taken by the parties 1. Prior to making this application to the Court, Mr Hatherly asked his neighbours to prune the bamboo to restore his view. 2. Michael Georgalas, the occupant of the respondent's dwelling, took no action to address the issue. Steven Georgalas, the respondent, only pruned the bamboo after receiving a copy of the Court application. 3. Steven Georgalas submitted to the Court that, after he removed trees from the rear garden some time ago, he planted the bamboo for privacy. He further stated that he intends to maintain the bamboo from now on at around fence height. Whether the trees lose their leaves 1. The bamboo is evergreen and therefore provides a dense screen throughout the entire year. The nature of the views 1. Before the bamboo grew, the applicant had broad landscape views to the east and northeast. The view includes Dora Creek, the vegetation beyond that, and sky. Parts of the dwelling from which the view is obstructed 1. The view is from the rear part of Mr Hatherly's dwelling, where on the upper level there is a living room with an east-facing deck. These areas are commonly used by the applicant and guests. Other relevant matters 1. Mr Hatherly has found that the bamboo spreads across the boundary, with shoots pushing up through pavers in his garden by the fence. Bamboo can be difficult to control. Bamboo on the respondent's side of the fence grows rapidly and is likely to regrow into the view. The respondent's actions in planting the bamboo here, and then inaction in regard to any management since, do not support his iterated intent to maintain the bamboo at around fence height in future. Such a task, even done willingly, may prove onerous, yet with no great benefit. If Mr Georgalas maintains the bamboo at around fence height, as he has proposed, it would contribute little to privacy beyond the screening already provided by the fence. Orders should be made 1. The benefits to the applicant in restoring his views outweigh any reasons not to interfere with the bamboo. The respondent's proposal to maintain the bamboo might prevent the view obstruction recurring, but I find it more likely that the bamboo will again obstruct the view at some time in the future, reigniting this dispute within a fractured relationship between neighbours. 2. The Land and Environment Court Act 1979 (at s 22) encourages a decision that not only resolves the matter but also minimises the likelihood of the matter returning to Court. 22 The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 1. In my opinion, if I make orders for pruning the bamboo, there would remain a high likelihood that the dispute would be reignited in future, and the matter would return to Court. Therefore, I will instead make orders for removing the bamboo. Mr Georgalas may of course plant other vegetation. If he plants vegetation to form a hedge, its height will be limited by the orders. Conclusion 1. Mr Hatherly's view became severely obstructed by a tall hedge of bamboo growing on Mr Georgalas' property. Although the hedge was pruned prior to the hearing, it is likely to grow into the view again. I find therefore that the bamboo severely obstructs a view from the applicant's dwelling, and that orders are required to prevent the obstruction. Orders for pruning are unlikely to resolve the dispute, so the bamboo is to be removed. Any further hedge plantings in the respondent's garden will be limited in height. Orders 1. For the reasons given above, the Court orders: 1. The application is granted. 2. The respondent is to remove, within 30 days of the date of these orders, all bamboo on his property along his southern boundary, and then take any action required to prevent the bamboo regrowing. 3. If the respondent establishes any hedges along his southern or eastern boundaries, he is to use species that grow to a height of no more than 2.5 metres at maturity. ………………………………. D Galwey 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: 18 November 2020