Land and Environment Court New South Wales Medium Neutral Citation: Holpert & anor v Sarsfield & anor [2016] NSWLEC 1031 Hearing dates: 25 January 2016 Date of orders: 04 February 2016 Decision date: 04 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; planter box; height above ground level; dwelling under construction - windows not yet installed; no severe obstruction Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2014 Cases Cited: Blau v Levi [2010] NSWLEC 1371 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Category: Principal judgment Parties: Mr O Holpert and Ms C Koellner (Applicants) Mr A Sarsfield and Ms G Smart (Respondents) Representation: Applicants: Mr O Holpert (Litigant in person) Respondents: Mr S Latham (Solicitor) Solicitors: Respondents: Stuart Latham Solicitors File Number(s): 21056 of 2015 Judgment 1. COMMISSIONER: The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a bamboo hedge growing in a planter box on the respondents' property. The orders are sought on the basis that the bamboo severely obstructs sunlight to windows of their dwelling and views from their dwelling. 2. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied before the Court's powers to make orders under s 14D are engaged. 3. The first of these tests is to determine whether the trees, the subject of the application, are trees to which the Part applies. Section 14A(1) states: (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). 1. Clause 4 Trees (Disputes Between Neighbours) Regulation 2014 states that bamboo is a tree for the purpose of the Act. 2. The bamboo is growing in a planter box built along the southern edge of a deck constructed above the respondents' garage. The deck is connected to a covered area of private open space at the front of their dwelling. At the time of the hearing, the height of the recently pruned bamboo when measured from the surface of the potting mix in the planter box was approximately 1.9m and about 2.5m from the surface of the deck inclusive of the planter. The wall of the garage, when measured from ground level on the respondents' property is approximately 2.8m high. 3. The respondents value the bamboo as it screens the unfinished second storey extension of the applicants' dwelling and provides a degree of privacy for the respondents' front deck and front bedrooms. 4. Although the plants are less than 2.5m, s 14A(1)(b) specifies 'above existing ground level'. Therefore while this may or may not have been intended in the drafting of the Act, and although it may be more logical to specify the height of the plant above the medium in which the plants are growing, the Part has been taken to apply to containerised plants on balconies and elevated structures where the overall height above ground level is more than 2.5m. In Blau v Levi [2010] NSWLEC 1371 the Court considered a similar situation; in that case the height of the plants in the planter box is not disclosed however it is implied that the arrangement of the plants and height of the balcony above ground level was sufficient to satisfy s 14A(1). 5. On this basis, I am satisfied that the bamboo plants are trees to which Part 2 A applies. 6. The next relevant and key test in applications made under Part 2A is found in s 14E(2) which 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. 1. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, such as the winter solstice, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows. Sunlight 1. Mr Holpert, the first applicant, contends that when he filed the application the bamboo was significantly taller and reached the height of the guttering of the respondents' roof. This is not disputed; the respondents pruned the bamboo prior to the hearing. Photographs included in Exhibit B show the bamboo at about 4m above the planter box. 2. The applicants' have development consent from Pittwater Council for alterations and additions to their dwelling. The dwelling is still under construction and has been for several years; the additions are not yet weatherproof. 3. The applicants nominate five windows which they say lose between 3-6 hours of sunlight from May to September as a consequence of the bamboo. However, the main area in contention is the proposed ground floor lounge room and the proposed glass roof of the adjoining small courtyard. There is no glazing in place however the metal frames for the proposed windows and glass doors have been installed. 4. Mr Holpert designed the additions to the dwelling. He states that he designed the lounge room and the associated glass roof to take advantage of the only possible solar access on the northern side of the dwelling. The plans included in Exhibit A show that the majority of the windows in the lounge/ rumpus room area on the ground floor open to the east and south and look onto the back garden and swimming pool. 5. Relevant to the application in regards to sunlight, in April 2010, the previous owner of the respondents' property was granted development consent to Modification Application N0051/08/S96/2 for alterations and additions to the dwelling. Condition of consent no. 15 states: 15. The balustrade along the southern edge of the patio above the garage is to be constructed at a height of 1.5m from finished floor level and contain a maximum of 25% openings, as viewed from the centre position of the plastic roofed/terrace at the rear of No 61 Whale Beach Road, Avalon [applicants' property]. 1. The reason for the imposition of the condition is not stated however Mr Holpert contends it was to provide privacy but ensure light transmission. It would seem that the plastic roof/terrace referred to was on the original dwelling on the applicants' land and not the current design which was not issued to council for approval until September 2011 [as indicated on the stamped approved plans included in Exhibit B]. 2. In August 2013 Mr Holpert and Mr Sarsfield, the first respondent, signed an agreement to a 'NOTICE TO CARRY OUT FENCING WORK' pursuant to s 1 of the Dividing Fences Act 1991. The agreement, included in Exhibit 1, was initiated by the applicants; the respondents were not required to contribute to the cost of the work. The first three clauses of the agreement are reproduced below: The fencing work be carried out along the common boundary of the adjoining lands described above to erect a privacy screening on top of the existing wall along the level of your [respondents'] lower timber deck at the front of your house. The height is proposed to be horizontal and level in line with the existing paling fence. The fencing work consists of a vertical timber post screen – 50mm wide with equal spaces at 90 degrees to the building – and a translucent Perspex sheeting on its northern part of the structure. This is intended to minimise noise transfer either way and allows sufficient light into the southern side. It is leading east from the south-eastern end of your garage approximately 6 metres along the common boundary to join onto the existing fence. It is to be approximately 1.87 metres in height matching the existing fence structure further east uphill in order to prevent overlooking of the adjoin land and inside of the building below [applicants']. Should you wish to install a planter box, and use vegetation and plants to screen the structure and to further enhance privacy and add to noise insulation, we will not object. The creation of the planter box to support this purpose will be at your own expense. 1. The slatted privacy screen/ balustrade discussed in [15] projects above the height of the planter box agreed to in item 'c' above. The bamboo is planted in the planter box. The frame for the Perspex fence has been installed but only one small section of Perspex was in place during the hearing. 2. Mr Holpert contends that the bamboo is an inappropriate choice as a screen planting and is too dense. Photographs taken by Mr Kyle Hill, consulting arborist, on 21 November 2015 when the bamboo was allegedly more than 4m tall purport to demonstrate a 'severe' obstruction of sunlight. Mr Hill's brief statement is included in the application claim form. 3. Apart from plans and photographs, Mr Holpert has included a series of shadow diagrams prepared, it appears, by Mr Adam Clerke a surveyor using a software program called 'Sketchup Pro'. It is also possible that Mr Holpert prepared the diagrams. The 3-D perspectives show the parties' properties from two angles; the hedge is shown as a solid green block; the applicants' dwelling is shown as designed and completed. Another set of shadow diagrams has been included which show the effects of the balustrade/ screen without the bamboo; however the perspective is different to the view with bamboo. 4. The shadow diagrams are difficult to interpret however it appears as though at 9.00 am on 22 June the proposed glass roof is partly shaded by the respondents' dwelling and partly by the bamboo to the extent that the area is fully shaded. Absent the bamboo, perhaps one third of the glass roof would receive sunlight at this time. At 12.00pm there is partial shading by the respondents' dwelling and bamboo with about 50% of the area of the glass roof receiving sunlight; without the bamboo but with a more 'overhead' perspective, the glass roof is in almost full sun. At 3.00 pm there appears to be shading by the applicants' dwelling and no shading by the hedge as the shadows are similar without the bamboo. 5. Mr Latham, the respondents' solicitor, submits that the diagrams should not be relied upon because they do not show the nominated windows and nor do they indicate the height of the hedge. He contends that as the windows/ glass roof have not yet been installed they cannot be obstructed. Mr Latham maintains that the fundamental problem is the applicants' design which locates the living area on the ground floor beside an established wall with a relatively small setback. 6. Having considered the evidence I agree with Mr Latham that the space in contention is fundamentally constrained by the respondents' garage wall and dwelling and that any opportunity for sunlight to the designed space will inevitably be limited. The wall is approximately 2.5 -2.8 m high and the screen above adds another metre. The shadow diagrams only show the shading of the glass roof; they do not show the other nominated windows; in fact the shadow diagrams do not appear to show the outline of the proposed glass roof, rather it appears as though the entire space between the rear northern façade of the applicant's dwelling and the respondents' garage and dwelling is identified. 7. Although Mr Latham argues that there can be no obstruction of something not yet installed, I have given the applicants the benefit of the doubt as whilst the glazing has not been installed, the framing is in place. 8. Regardless of the highly constrained location of the nominated living room windows, on the evidence of the photographs included in Exhibits A, B and 1, I am not satisfied that the bamboo severely obstructs sunlight to those windows. Several of the photographs (including those taken when the plants were taller) show shafts of sunlight between the plants; the individual stems do not constitute a solid barrier, as illustrated in the shadow diagrams. The shadow diagrams, such as they are, also show that the glass roof receives several hours of sunlight. 9. Therefore as s 14E(2)(a)(i) is not met, any further consideration of the issue is not required and this element of the application is dismissed. Views 1. The applicants have nominated three viewing positions and views. 2. V1 is a view of the sky from the north-east facing windows/ through the glass roof of the lounge room. At the hearing it was possible to see the sky and the view of it was not severely obstructed by the respondents' bamboo. 3. V3 is through a narrow floor to ceiling window in a yet to be completed bathroom on the first floor. The district views from this position were clearly visible at the time of the hearing and were not obstructed by the bamboo. 4. V2 is shown in the application claim form as an oblique view to the north and northwest from a yet to be completed second bedroom on the first floor, located above the lounge room and overlooking the proposed glass roof. The potential view is described as views of the sky and the district. At the time of the hearing the window frames were covered by a tarpaulin and therefore it was impossible to verify any obstruction posed by the bamboo. However, given that this window is shown to be to the west of V2 and that view was unobstructed by the bamboo, it is reasonable to assume that this view was similarly unobstructed. 5. I note that the nominated viewing points are across side boundaries. I also observed on the day of the hearing that the applicants' dwelling has decks on both the elevated ground floor and first floor from which extensive district views are available. 6. Overall, I find that the bamboo does not severely obstruct views from the applicants' dwelling and as s 14E(2)(a)(ii) is not satisfied no orders can be made for any intervention with it. Orders 1. As a consequence of these findings, 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: 04 February 2016