Land and Environment Court New South Wales Medium Neutral Citation: Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Hearing dates: 28 May 2013 Decision date: 31 May 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; views; are the trees planted so as to form a hedge; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Tony and Gai Coleman (Applicants) Christopher and Margaret Leddy (Respondents) Representation: Applicants: T & G Coleman (Litigants in person) Respondents: M Leddy (Litigant in person) File Number(s): 20131 of 2013 Judgment 1COMMISSIONER: The applicants in these proceedings moved into their newly constructed dwelling in Skennars Head in 2007. At that time, they assert that they enjoyed uninterrupted views of the ocean to the southeast. They contend that they were able to see the annual whale migration from their sofa in the living room and from their deck on the top floor of their dwelling. However, it is their position that the growth of vegetation on the respondents' property has severely obstructed the views they initially enjoyed. 2Accordingly, the applicants have applied to the Court under s 14B(b) Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal and maintenance of elements of the respondents' vegetation. Specifically, the applicants are seeking the removal of all bamboo and the maintenance to 2.5m of any remaining vegetation (and future plantings) growing along the western boundary of the respondents' property. 3The respondents do not wish to remove or prune the vegetation as they value it for the privacy it affords their dwelling. Do the trees form a hedge for the purpose of the Act? 4In applications under part 2A there are a number of jurisdictional tests that must be satisfied. The first of these is found in s 14A(1); this states: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 5In this matter, the applicants have nominated 19 trees, which are shown on the diagram in the application claim form. The applicants acknowledge that the accuracy of the diagram is limited by the fact that it is based on what was visible from their side of the dividing fence. 6The trees in question are planted in a garden bed along the rear/ western boundary of the respondents' property. The vegetation comprises two species of bamboo (Bambusa lako - Timor Black Bamboo, and Bambusa textiles var Gracilis - Gracilis bamboo), several Metrosideros sp (New Zealand Christmas Bush), a Tuckeroo, and two species of palms. 7In oral evidence given at the on-site hearing, the second respondent stated that landscaping of their garden commenced in about 2001 with the planting of some clumps of Black Bamboo, the palms, Metrosideros and Tuckeroo at relatively wide (at least 2m) and staggered spacings. In 2006 when it became clear that the applicants' block was to be developed close to the rear of their property, they in-filled the original planting with clumps of Gracilis bamboo at about 2.5m - 3m spacings and in a staggered arrangement. This was to provide additional screening. It was stated that the individual bamboo clumps that were planted in 2006 comprised about 3 stems per pot. 8Needless to say, the clumps have grown considerably in width and height. From the respondents' property the plants appear at ground level as individuals (clumps or single stems depending on the species), however from the applicants' property the foliage forms a relatively continuous and interconnected canopy. I observed the distance between the clumps of Gracilis bamboo to be about 1.5-2m apart. All plants are in excess of 2.5m tall. Findings - s 14A(1)(a) 9In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). At [28] His Honour states: 28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple past present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present. 10At [38] His Honour considers in part that if the plants are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed. 11In the matter before me, the respondents initiated two distinct plantings, one in 2001 and the other in 2006. Therefore, it is open for me to find that there are two possible 'hedges' - the 2001 'hedge' and the 2006 'hedge'. 12Dealing with the 2001 planting, I am not satisfied on a horticultural basis that the selection of species, the spacings and arrangement of plants could be construed as being 'planted so as to form a hedge'. The species are distinctly different in their form (bamboo, palms, plus broadleaved trees and shrubs) at spacings in excess of 2m and in a staggered arrangement. 13In regards to the 2006 planting, while a single species was used, Gracilis bamboo, the wide spacings and discontinuous and staggered arrangement do not, when viewed from the respondents' property, constitute a 'hedge' for the purpose of the Act. Similarly, I am not satisfied on the evidence that there is a sufficiently close arrangement between any two clumps of Gracilis bamboo to satisfy s 14A(1)(a). 14The fact that the net effect of the two plantings is a generally continuous canopy when viewed from the applicants' property does not in itself satisfy the jurisdictional test in s 14A(1)(a). 15By way of comparison, as considered on site, the 2001 and 2006 plantings along the western boundary are distinctly different in character to the row of Camellia sasanqua planted along the northern boundary of the respondents' property. The Camellias would, in my view, be readily perceived as 'planted so as to form a hedge'. 'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the Commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge". 16On the evidence before me, I am not satisfied that the trees the subject of the application are planted so as to form a hedge, and therefore the Court has no jurisdiction to consider the application further. However, if I am wrong in this jurisdictional test, I will consider the next relevant test, which is - is there a severe obstruction of a view from the applicants' dwelling as a consequence of the nominated trees. Do the trees severely obstruct a view from the applicants' dwelling? 17The relevant jurisdictional test is satisfaction of 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. 18The subdivision in which the parties' properties are situated has an unusual layout. The respondents' property fronts what may be a reserve or at least a large vacant lot to the west of the main road. To the east of the main road are a coastal reserve and then the beach. The respondents' property is sandwiched between the respondents' property and the property to the west that fronts the residential street from which the properties are accessed. The land to the south of the respondents' property is currently a vacant lot. The second respondent informed me that development approval had been granted for the construction of a new dwelling, however there was no written material to confirm this. 19The applicants have nominated eight viewing locations on the eastern side of the upper level of their dwelling. As stated above, the desirable view is of the ocean to the southeast. This is a view 'corridor' across the vacant lot and reserve and framed to the east and south by two storey residential dwellings. The view corridor becomes increasingly constrained by the respondents' dwelling when one moves from the southern end of the applicants' dwelling to the northern end. 20The scale of impact I have used in this judgment is that described in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 at [28] - that is, a range from negligible, minor, moderate, severe, to devastating. 21Viewing point 1 (V1) is a large deck off the living room; the east-facing living room windows/glass doors are V2 and V3. Photographs in the application claim form show essentially the view I was able to observe for myself on the day of the hearing [see discussion of the word 'are' in s 14E(2)(a)(ii) and its relevance to the time of the hearing in Tooth v McCombie [2011] NSWLEC 1004; and Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122]. While there is some obstruction caused by the palm (T1) and individual stems of Black Bamboo and several stems of Gracilis bamboo, the ocean was clearly visible from both sitting and standing positions. In my opinion, the obstruction of the view as a consequence of the trees is minor. 22V4 is a south-facing sliding glass door of a 'games' room in which a pool table is situated. The principal view is of the nearby residence to the south with a filtered view, from a standing position, of the ocean through a slatted privacy screen on the deck. The view is also constrained by blinds on the glass doors. 23V5 is the east-facing window of the games room. Depending on where one stands, the view of the ocean is moderately obstructed by a clump of Gracilis bamboo (possibly T10). Standing in the kitchen, located within the open plan of this room, standing views of the ocean were similarly moderately obstructed by some of the respondents' Gracilis bamboo but also by built structures (including privacy screens) and internal blinds. 24V6 is through a relatively small window of the dining room; the principal view is of the respondents' dwelling with the narrow view to the water being severely obstructed by Gracilis bamboo (probably T14). The views could only be seen from a standing position. 25V7 and V8 are from the main bedroom and its associated deck at the north-eastern corner of the applicants' dwelling. Since the filing of the application, the majority of the plants T15-T19, to the north of the respondents' garden shed, have been removed or reduced. The principal view from these locations is the rear of the respondents' dwelling and the dwellings to the north. Any potential views of the water are from standing positions only and are also limited by a privacy screen on part of the deck. I observed filtered views of the water however, there is a moderate to severe obstruction as a consequence of Gracilis bamboo, probably T 14. Findings - s 14E(2)(a)(ii) 26Assuming that the trees on the respondents' property are trees to which Part 2A applies, I have noted above that there is a severe obstruction of the view of the water from V6, V7 and V8 as a consequence of those trees, and therefore s 14E(2)(a)(ii) is satisfied. 27Again, assuming the Court has jurisdiction under s 14A, the Court must then consider the balancing inherent in s 14E(2)(b). This, in turn, requires consideration of the discretionary matters in s 14F in order to determine whether any orders under s 14D are appropriate in the circumstances. Relevant here are the following clauses: (a) The trees are close to the boundary of both properties; the applicants' property appears to be a smaller lot with closer setbacks to adjoining properties. (b) Some of the trees existed before the applicants' dwelling existed and some were planted before the dwelling was occupied. (d) Material filed by Ballina Shire Council (exhibit 2) indicates that interference with any tree on the respondents' land over 6m in height would ordinarily require council permission. It was not clear from the material provided by council whether there is a mechanism by which a neighbour can apply to council for permission to prune overhanging vegetation. This is open for the applicants to follow up. (e) While no conditions of development consent relating to either parties' properties were tendered, the second respondent stated that her recollection of meetings with council officers leading up to the granting of consent for the applicants' property was that the bamboo would provide sufficient visual screening so that the extent of privacy screens on the applicants' dwelling would be limited. (l) The Gracilis bamboo affords privacy to the respondents' property and is a component of the landscape design. (m) As stated above, the view is an oblique view effectively across a side boundary and constrained principally by the respondents' property. There are other constraints within the applicants' property including privacy screens. The views from V6, V7 and V8 are only available from standing positions. (n) The respondents have removed vegetation adjoining V7 and V8. (p) The plants in question are evergreen. (q) As described in the body of the judgment and in (m) the view, while being a desirable view of the ocean, is constrained by the location of the applicants' dwelling in relation to that of the respondents' property. The viewing positions V6, V7 and V8 are at the northern end of the dwelling and therefore the angle of view becomes more acute. (r) The part of the dwelling from which views are severely obstructed are a dining room window, the main bedroom and the deck adjoining that bedroom on which there is a spa. The applicants contend that as the deck also adjoins the dining room, it is used as an entertainment area. Findings - s 14E(2)(b) 28While there is some severe obstruction of the applicants' view of the ocean from three of the nominated locations, I find that, on balance, the applicants' interests in having the obstruction removed, that is the removal of the bamboo, does not outweigh other considerations. 29Considering some of the qualitative assessment criteria in the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140: the views are not of iconic structures but are desirable water views. Views across side boundaries are more difficult to protect than views from front or rear boundaries; and in this case, the view corridor is inherently narrow and constrained by other elements. While some of the views are from living areas and the kitchen, there no severe obstruction of those views as a consequence of the trees; and, views from bedrooms are less important than views from living rooms. Conclusions and orders 30While I accept that the applicants are frustrated by the loss of parts of their view as a consequence of the vigorous growth of the respondents' bamboo, I have found that the Court has no jurisdiction to make the orders the applicants seek as s 14A(1)(a) is not satisfied. 31Even if I am wrong on that jurisdictional test I have also considered the merits of remedying the severe obstruction of the views caused by the respondents' vegetation to V6, V7 and V8 and have found that orders for rectification are not warranted in the current circumstances. 32While the issue of potential damage to the applicants' property by the respondents' bamboo was discussed on site, no application was made pursuant to s 7 Part 2. 33Therefore, as a consequence of the foregoing, the Orders of the Court are: (1)The application is dismissed. _____________________ Judy Fakes 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: 31 May 2013