Holland v Bell [2017] NSWLEC 1322

Land and Environment Court New South Wales

Medium Neutral Citation: Holland v Bell [2017] NSWLEC 1322 Hearing dates: 8 June 2017 Date of orders: 08 June 2017 Decision date: 08 June 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 19. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); bamboo; hedge; severe obstruction of views; privacy; orders for pruning. Legislation Cited: Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006 Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Category: Principal judgment Parties: Mark Holland (Applicant) Douglas Bell (Respondent) Representation: Mr John Weaver, Barrister (Applicant) Mullick and Associates, Solicitors (Applicant) Mr Douglas Bell, Litigant in Person (Respondent) File Number(s): 62244 of 2017

Judgment

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

Background 1. Around 15 years ago Mr Bell ('the respondent') planted a row of bamboo along a boundary of his Kareela property, to gain some privacy by creating screening between his dwelling and the upslope dwellings to his south. He says the bamboo grew quickly to its full height, well above 5 metres. 2. Mr and Mrs Holland purchased a neighbouring property to Mr Bell's south in 2012. Promotional material for the property's sale included photographs taken from the dwelling's deck and living area showing water views to the east of Mr Bell's dwelling, and sky and tree views above his dwelling. Water views were highly valued by the Hollands. Mr Bell alleges that these views were available at that moment only because the vendors of the Hollands' property had, without his permission, cut the bamboo prior to the sale of their property. 3. The Hollands lived overseas for a few years, during which time the bamboo quickly regrew, but in 2015 tried to reach agreement with Mr Bell regarding cutting of the bamboo to regain their views. Both parties presented to the Court documents and submissions regarding the nature and outcome of these communications, largely irrelevant to the Court, but I am satisfied that the applicant has tried to reach agreement with the respondent as required by s 14E(1)(a) of the Trees (Disputes Between Neighbours) Act 2006. 4. Mr Holland ('the applicant') has applied to the Court, pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the respondent to cut the bamboo to a height of 50 cm above the top of the boundary fence, and to maintain it at a height of 50-60 cm above the top of the fence. The Hollands say this will restore the view that was previously available and maintain much of Mr Bell's privacy. 5. Mr Bell says that his dwelling and other trees on his property and in the adjacent reserve obstruct most of the view from the Hollands' dwelling, but accepts there may be a small view corridor, perhaps two metres wide, to the east of his dwelling. He contends that no pruning would restore the Hollands' views, but if any pruning is to be done it should be limited to that narrow section. He is concerned about the impact of any pruning on his privacy, saying the Hollands and their neighbours would get views into his bedroom, en suite, bathroom, kitchen and deck. He is also concerned about the impact of pruning on the health of the bamboo.