McMorrow v Rhodes & anor [2017] NSWLEC 1556

Land and Environment Court New South Wales

Medium Neutral Citation: McMorrow v Rhodes & anor [2017] NSWLEC 1556 Hearing dates: 28 September 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Bamboo hedge; obstruction of views; balancing of interests Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2014 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Mr Kevin McMorrow (Applicant) Mr Dale and Ms Sharon Rhodes (Respondents) Representation: Applicant: Mr K McMorrow (Litigant in person) Respondents: Mr D & Ms S Rhodes (Litigants in person) File Number(s): 187146 of 2017

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant purchased his Mullumbimby property in 2014. He contends that a row of bamboo planted along the respondents' northern boundary severely obstructs views from three rooms of his dwelling. 2. The applicant has applied under s 14B Part2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the bamboo so that a timber fence can be installed between the parties' properties. 3. The respondents planted the row of Malaysian Clumping Bamboo in 2012. They selected the species after careful consideration. The respondents do not wish to remove the bamboo as they value it for the privacy it affords cabins and associated private open space on their property, especially given the relatively elevated position of the applicant's nearby dwelling. They are content to maintain the hedge at about 2.8-3m above ground level, approximately the height measured during the on-site hearing. 4. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged. 5. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge, and if so, do they rise to a height of at least 2.5m above ground level? 6. The Trees (Disputes Between Neighbours) Regulation 2014 prescribes bamboo as a tree for the purpose of the Trees Act. Given the planting arrangement, spacing, species and height, I am satisfied that the trees the subject of the application are trees to which Part 2A applies. 7. The 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. The applicant has nominated three south-facing windows and associated viewing positions. View 1 (V1) through window 1 (W1) is from the study, V2 through W2 is from the bathroom and V3 through W3 is from a spare bedroom. 2. The view the applicant says is obstructed by the bamboo is an oblique view to the southeast of about 100-200m in length of distant trees along Salt Water Creek (an ephemeral water course), the trees adjoining the Mullumbimby Community Gardens, and the sky. 3. With the benefit of the site inspection, I am satisfied that the bamboo severely obstructs the views desired by the applicant. 4. As s 14E(2)(a)(ii) is met, the associated balancing of interests in s 14E(2)(b) must be considered. This requires consideration of relevant matters in s 14F of the Trees Act. In addition, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. 5. The first step in Tenacity considers the nature of the view – whether the view is of iconic structures, water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The view in contention would be best described as a partial and oblique view of a semi-rural/ district view. Essentially the view is of the respondents' very large (3 acre) backyard, which extends from the applicant's boundary across the bank of the ephemeral Salt Water Creek and the trees along its banks. The community gardens are not visible from the applicant's property, as they are obscured by buildings on the respondents' property and trees behind. The sky was visible through each of the windows. 6. The second step in Tenacity considers the location from which the view is seen – across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. All views were observed from standing positions. All views are across a side boundary. Partial views of the respondents' property and trees are available from the east-facing windows of the main living room at the front of the applicant's dwelling. 7. The third step considers the use of the rooms from which the views may be affected – views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating. The desk in the study is facing the wall and not the window; bathrooms are rooms where privacy between neighbours is generally expected; and V3 is from a spare bedroom, not a living room. 8. Considering other clauses (in brackets) in s 14F: * The bamboo is relatively close to the dwelling as the applicant's dwelling is relatively close to the common boundary (s 14F(a)); * The trees were present before the applicant purchased his property (b), and have grown to their current height during the time the applicant has owned his property (c); * According to the respondents, the bamboo provides habitat for small birds and reptiles (many Water Dragons were seen in and around the bamboo) (g); the bamboo affords privacy to the cabins – absent the bamboo there would be direct views to them from the nominated rooms, especially from the study (l); similarly, absent the bamboo, the view from V1 would be obstructed by a large Mango tree on the respondents' property and a Mulberry tree would partially obscure the view from V3 (m); * Bamboo tolerates pruning (k); the respondents have recently pruned the hedge and have offered to have any overhanging parts removed from the applicant's property (n). * Bamboo is evergreen (p); * As previously noted, the view is essentially of the respondents' property and does not include any of the more notable volcanic or other landscape features of the Mullumbimby area (q); and the rooms from which the views are obscured are not principal living areas (r). On balance, I am not satisfied that the interests of the applicant outweigh all other relevant matters. There is certainly no compelling reason to justify the removal of the bamboo, or indeed any pruning of it; however I note the respondents' intentions to continue to prune the plants. As s 14(E)(2)(b) is not found in the applicant's favour, the Court has no jurisdiction to make any orders other than: 1. The application is dismissed. ______________________ Judy Fakes 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: 05 October 2017