Land and Environment Court New South Wales Medium Neutral Citation: Steber v Job [2019] NSWLEC 1308 Hearing dates: 14 May 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted. (2) Within 90 days of the date of these orders, the respondent is to remove all bamboo plants in the hedge along her eastern boundary. (3) The respondent is to take any steps necessary to prevent regrowth of the bamboo. (4) If the respondent wishes to plant a replacement hedge along this boundary, it must be maintained at a height no greater than 1.2 metres. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – obstruction of view – requirement of hedge to be at least 2.5 metres tall – pruning of hedge prior to hearing – whether the trees are severely obstructing a view – whether the obstruction must be present on the day of the hearing – evidence of view obstruction – orders for removal of bamboo Legislation Cited: Interpretation Act 1987 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW) Trees (Disputes Between Neighbours) Regulation 2014 Cases Cited: Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012 Texts Cited: Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (High hedge provisions), Attorney General, December 2013 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009 Category: Principal judgment Parties: John Steber (First Applicant) Charmian Steber (Second Applicant) Christine Job (Respondent) Representation: Solicitors: J Shevlin, James A Shevlin (Respondent) Other: J and C Steber, litigants in person (Applicants) File Number(s): 2019/54758 Publication restriction: No Judgment The application 1. On the calmest of sunny autumn mornings, the onsite hearing for this matter took place alongside the mirror-like water of Bonnells Bay. Here, Charmian and John Steber ('the applicants') have enjoyed broad views across the water from their dwelling, which they constructed in 2015. Also in 2015, their neighbour Christine Job ('the respondent') planted clumping bamboo on her property, along their common boundary, from the dwelling to the back boundary close to the water. 2. When the bamboo grew up into their view the Stebers asked Ms Job to prune it. She undertook some pruning but at a height that did not restore the Stebers' view. Despite further requests the bamboo was only ever pruned at its upper parts, which did not restore their view. Eventually in early 2019 they applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the removal of the bamboo on the basis that it severely obstructs views from, and sunlight to, their dwelling. 3. After the Stebers made their application and prior to the onsite hearing Ms Job had the hedge pruned to a height of 2.0—2.2 metres. Hearing 1. At the onsite hearing were Mrs and Mr Steber, representing themselves, and Mr Shevlin, solicitor, representing Ms Job, who was also present. Framework for this decision 1. The Trees Act was introduced in 2006 to provide an avenue for neighbours to resolve disputes involving trees through a simple and inexpensive process. In 2010 the Trees Act was amended to include Part 2A, allowing people to apply for orders where trees in neighbouring hedges obstruct their sunlight or views. Part 2A provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders the Court is still required to balance the benefits of the trees, which can be significant, against the interests of the applicant. 2. The framework of the Trees Act is relatively straightforward. In determining this application, I will consider the relevant facts and arguments as they apply to each section of Part 2A. Does Part 2A apply to the bamboo (s 14A)? 1. According to cl 4 of the Trees (Disputes Between Neighbours) Regulation 2014 bamboo is a tree for the purposes of the Trees Act. 2. Section 14A of the Trees Act limits the trees to which Part 2A applies. 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). (2) Despite section 4, this Part does not apply to trees situated on Crown land. 1. The hedge must contain more than one tree. The trees must be planted, not self-sown, with an intent at the time of planting to form a hedge, and they must still form a hedge. If this is not clear from the section's wording alone, Preston CJ provided clarification in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192. The trees must rise to at least 2.5 metres above ground level. 2. Photographs included in the Stebers' application show the situation at the time, or shortly before, they applied to the Court (the date stamp is clearly incorrect as the Stebers' dwelling was not present in 2011). These photos unequivocally show the bamboo to be more than 2.5 metres tall and to form a hedge. This is not disputed by Ms Job, who also stated that she planted the trees (more than one) to make a hedge. 3. Although the bamboo plants were pruned shortly before the hearing, leaving them less than 2.5 metres tall, the Stebers have shown that they are indeed trees that rise to a height greater than 2.5 metres. Had the trees never reached that height, for instance by Ms Job continually maintaining them at a lower height from the time she planted them, then the Stebers would be unable to show that these particular trees rise to a height of at least 2.5 metres. I appreciate that earlier decisions of this Court, including my own, have dismissed applications where trees have been pruned prior to the hearing so that they are less than 2.5 metres tall. However the Trees Act does not restrict the present tense of 'rise' to a single moment in time. If the trees had not yet reached 2.5 metres but might do so in the future, they do not presently rise to that height. This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [53]–[59]. If they have reached 2.5 metres in height, they are trees that rise to 2.5 metres, even if they might not do so on the day of the hearing. This interpretation of s 14A is preferred as it promotes the objectives of the Trees Act, a matter discussed at greater length below from [34]. 4. According to s 14A, then, Part 2A of the Trees Act applies to Ms Job's bamboo hedge. The Stebers could apply to the Court (s 14B) 1. Section 14B then enables an application to the Court in certain circumstances: 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land. 1. The Stebers own their land. 2. The Stebers applied to the Court seeking orders to remedy, restrain or prevent obstruction of sunlight and views. A constraint here for a potential applicant is that the trees must be causing a severe obstruction of sunlight to, or views from, the applicant's dwelling. Naturally, all applicants believe this to be the case, or they would not be applying to the Court; yet some applications are dismissed because the Court finds the obstruction is not severe. It may be a matter of some subjective opinion: an applicant finds the obstruction severe, while a respondent thinks it is not. It is certainly a matter for the Court to assess and determine, and the Court now has considerable experience doing so. Section 14E, which I will come to, demands that the Court determines the severity of obstruction before making orders. Because no orders can be made unless the s 14E test is satisfied, this lightens any load carried by the wording at s 14B. It seems sufficient for the purpose of this section that the applicants hold the opinion that the obstruction caused by the hedge is severe. The Stebers found the view obstruction caused by the bamboo to be severe, and applied for orders to remedy, restrain or prevent the obstruction, as they are permitted to do according to s 14B. 3. Finally, for consideration of s 14B, the Stebers applied for relief from an obstruction caused by Ms Job's bamboo hedge, which I found above to be made up of trees to which this Part applies, and which are situated on adjoining land. Did the applicants give notice (s 14C)? 1. Section 14C of the Trees Act requires the applicant to give notice to the respondent and to their local council. The Stebers did this. Can the Court order removal of the bamboo (s 14D)? 1. The types of orders the Court might make under Part 2A are described at s 14D: 14D Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of: (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the applicant's land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following: (a) require the taking of specified action to remedy the obstruction of sunlight or of a view, (b) require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view, (c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape, (d) require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree, (e) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), (f) authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view, (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), (h) require the payment of costs associated with carrying out an order under this section. (3) However, the power to make an order under subsection (1) does not extend to an order that requires the payment of compensation. 1. While s 14D(1)'s "…as it thinks fit…" allows for a broad range of orders, s 14D(2) lists orders that might ordinarily be appropriate for addressing a severe obstruction of sunlight or a view, including at (a) and (b) the making of orders that would "require the taking of specified action" to remedy, restrain or prevent the obstruction, and at (d) orders that would require the removal of trees. 2. A condition of s 14D(1) is that "…the obstruction occurs as a consequence of trees that are the subject of the application concerned." Ms Job's bamboo hedge is the subject of the Stebers' application. 3. Providing jurisdictional tests are satisfied, the orders sought by the Stebers for the bamboo to be removed are ones that the Court could make. Jurisdictional tests: matters of which the Court must be satisfied (s 14E) 1. The principle jurisdictional tests under Part 2A are laid out at s 14E: 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. (2) The Court must not make an order under this Part unless it is satisfied that: (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. The applicants made reasonable effort to reach agreement 1. The Stebers wrote to Ms Job in 2017 asking for the bamboo to be pruned to restore their views. Some further correspondence followed but they were unable to reach agreement. I'm satisfied that their efforts were reasonable (s 14E(1)(a)). The applicants gave the required notice 1. The Stebers gave notice as required by s 14C (s 14E(1)(b)). Are the trees severely obstructing sunlight to, or views from, the applicants' dwelling? 1. According to s 14E(2)(a), I must not make any orders under Part 2A unless first satisfied that Ms Job's bamboo severely obstructs sunlight to a window of the Stebers' dwelling or views from their dwelling. Sunlight 1. Pictures in the Stebers' application show the southern part of the hedge (T1–T4 in their application) close to their west-facing windows, with the top of the bamboo higher than the tops of the windows. 2. The bamboo was pruned after the Stebers applied to the Court but prior to the hearing. At the time of the hearing, the sunlight obstruction was not severe. 3. The Stebers explained that, when it is taller, the bamboo obstructs afternoon sunlight to their windows. Mr Shevlin said he could not see how that could be the case, as the sun was shining during the hearing and the only shadows in the Stebers' garden were cast by trees to the north or east. This is unsurprising, as the hearing was held in the morning in autumn. Considering the position and aspect of the windows, it is clear that the bamboo, when it is taller, obstructs sunlight to the Stebers' living room windows. On the evidence, I accept the Stebers' submissions that the obstruction to those windows was severe. However, the recent pruning has changed that, and clearly this must be considered. It is best that I address this below, as the matter of view obstruction applies to the entire hedge, rather than just this small section at its southern end, and is perhaps the Stebers' principal concern. For now, for the same reasons as I explain below, I find that trees in this section of the hedge are causing a severe obstruction of sunlight to the Stebers' living room windows. Views 1. Firstly, the obstructed view must be from the Stebers' dwelling, not their garden or other parts of their property. Secondly, the view obstruction must be severe. 2. The Stebers' application included photographs taken from within their living room. I stood at the living room door during the hearing and observed, across the top of the pruned hedge, broad views of Bonnells Bay, with Dora Creek to the north and Hungary Point to the northwest. The Stebers' photos show most of this view is blocked by the bamboo when it is taller. 3. The Stebers explained that they had bought their property for these views. 4. Mr Shevlin argued that the view obstruction was not severe even when the bamboo was taller. He opined that the view from the Stebers' dwelling was only to the north, across their rear boundary, and so unaffected by screening along their western boundary. Standing at the Stebers' living room window I observed this was clearly not the case. The properties along the waterfront here are long and narrow, their small frontage facing south to the street and their narrow rear boundaries facing north to the water. The Stebers' dwelling is closer to the southern frontage, as is Ms Job's, leaving long back yards between the water and the dwellings. From the Stebers' dwelling, a view is available across the rear boundary, but a far more expansive view is to be enjoyed across the long side boundary where the bamboo grows. 5. With the benefit of onsite observations and the Stebers' photographs, I find that their photos show a severe obstruction of their views caused by the bamboo hedge. 6. The jurisdictional test at s 14E(2)(a) requires the Court to be satisfied that the trees concerned are severely obstructing sunlight or a view. This Court has, in many cases, construed the grammatical use of the present progressive 'are obstructing' (leaving out the adverb 'severely' for the minute) as a test to be applied on the day of the hearing. In Tooth v McCombie [2011] NSWLEC 1004, the respondents pruned their trees after the application was made and before the hearing. Commissioner Fakes found at [14] that the use of the present tense implies 'at the time of the hearing.' "The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing." 1. I concur that the test does not refer to a future, as yet unrealised, view obstruction, but I am no longer convinced that 'are obstructing' implies 'at the time of the hearing', even though I have applied this interpretation myself until now. Given the potential consequences of such a change of mind, it is worth explaining. After all, the annotated version of the Trees Act, available for potential applicants and respondents in tree matters, includes reference to this well-used interpretation of s 14E(2)(a). 2. When assessing sunlight obstruction, the Court does not limit itself to the situation as found 'at the time of the hearing'. Trees might obstruct sunlight from the north only, during winter, but the hearing might take place during summer. Afternoon obstruction of sunlight might not be observed at a morning hearing. Nevertheless, the Court has made orders in these situations. The Court considers that, given the existing situation, a severe obstruction is something that has occurred and will most probably occur again. 3. I now read the words 'are severely obstructing' to be a state that, once reached, might continue to apply or recur. If a tired worker tells her colleague that her neighbour's dogs are disturbing her sleep, she is not saying it is happening at that moment; rather, she is describing an ongoing state of affairs that affects her life at present. It has happened, recently, and is likely to happen again, soon. Dictionaries describe this use of the present progressive tense as 'continuous'. 4. In the case of more than one possible interpretation of an Act's provisions, the Interpretation Act 1987 (NSW) ('the Interpretation Act'), at s 33, favours an interpretation that promotes the Act's underlying purpose (my italics for emphasis): 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 1. The Interpretation Act then provides at s 34 more detail regarding when, why and how extrinsic material might be used to shed light on the meaning of a provision in an Act. To assist here, I refer to the Attorney General's 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the 2009 Review') and the 2013 Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (High hedge provisions) ('the 2013 Review'). The objective of the Trees Act, quoted in both reviews, is to provide 'a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. 2. Both reviews recognised that the jurisdiction regarding hedges must be strictly limited, reflected by the wording of Part 2A. Neither review noted any requirement for a jurisdictional test to be satisfied on the day of the hearing. Although the wording of Part 2A is carefully chosen to limit the jurisdiction, the underlying purpose of this Part is to provide, where appropriate, means for a land owner to seek and obtain orders to restore access to views or sunlight obstructed by a neighbouring hedge. The 2009 Review takes particular care to recommend that it must be the applicant, not a previous owner of their property, who has lost their view or solar access. However it makes no effort to pinpoint the day on which the obstruction must be found to be severe. 3. Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a). 4. Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order. 5. The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case. 6. The Stebers argued that Ms Job has demonstrated through her actions, or lack of action, that she cannot, or is not willing to, prevent her bamboo growing and obstructing their view. I accept this to be the case. Ms Job initially responded to the Stebers' request to restore their view with promises to prune the bamboo. Only minor pruning was done. Ms Job stated that she was unable to undertake the pruning herself, and she had great difficulty finding someone to do it. She submitted that contractors were put off by the heat during summer. This does not explain the two years it appears to have taken for adequate pruning to finally be done. 7. Having considered photographs, observations, the history of the matter and the submissions heard, I find Ms Job's hedge has caused a severe obstruction of the Stebers' view and that this is likely to be an ongoing state. I am satisfied that the trees, in this case bamboo, are severely obstructing the view from the Stebers' dwelling. Balancing the obstruction against the benefits of the trees 1. The final requirement of s 14E(2) is that, before making any orders, I must be satisfied that the Stebers' interest in restoring their views and solar access outweighs reasons for avoiding interference with the trees (s 14E(2)(b)). The matters to be considered in the balance are set out at s 14F. Consideration of relevant matters (s 14F) 1. The bamboo is planted on Ms Job's land, close to, but not against the common boundary fence. She installed her own steel panel fence on her property, about 200 mm from the boundary, and planted bamboo along that. 2. The bamboo was planted around the time that the Stebers' dwelling was constructed. Prior to this, Ms Job had other trees on her property, which she says she removed after the Stebers requested this. She planted lilly pillies as a screen but they did not grow well. 3. The bamboo grew to a height of more than 2.5 metres after the Stebers occupied their new dwelling on their land. At the outset, after Ms Job removed other trees, they had substantial views. The view obstruction became severe while they have been living there. 4. Ms Job would not require a permit to remove the bamboo. The Stebers submitted that, in fact, to maintain the views of these waterside properties, Lake Macquarie City's State Environmental Planning Policy (SEPP) limits fence height along these sections of the side boundaries to 1.2 metres. Most dwellings are positioned closer to the street on these long narrow properties, so effort has gone into protecting the views across side boundaries. 5. The bamboo provides screening between the two properties. Ms Job says she planted the bamboo for privacy. Mr Shevlin submitted that his client is concerned about her privacy, specifically that the Stebers might see into her garden. The Stebers submitted that people on properties to her west, including people who rent a boat shed two properties away, have unobstructed sightlines into her back garden, yet she has not attempted to grow any screen there. At this point Mr Shevlin argued the Stebers were making mischievous claims, as the boatshed is not rented out. He knew this because he owns the property on which it stands, a fact he had failed to mention until then. I accept the bamboo might prevent overlooking from the Stebers' property. 6. Apart from its contribution to privacy, the bamboo hedge provides little environmental or amenity value beyond Ms Job's property. 7. The bamboo can be pruned, but as Ms Job has demonstrated, she has trouble arranging this. Once pruned the bamboo grows quickly back into the Stebers' views. 8. The situation is a result of Ms Job's actions. Despite her complaints that the Stebers demanded she remove other trees, and that they won't allow contractors onto their property to clean up debris from the bamboo, the severe view obstruction is a direct result of Ms Job planting the bamboo and then failing to maintain it at a reasonable height. 9. The Stebers' written requests to Ms Job appear reasonable, yet the bamboo has only been pruned to a reasonable height since they made their application to this Court approximately two years later. 10. The obstructed view is clearly valuable to all those who live along the water here. When the bamboo is tall, the Stebers lose over 90% of the water views from the living room at the back of their dwelling. 11. Bamboo directly to the west of the Stebers' dwelling severely obstructs sunlight to their living room. Conclusion 1. The bamboo provides some screening to Ms Job's back garden from the east, but by no means makes her garden private. Beyond this, the bamboo provides little in the way of benefits. By her own admission Ms Job finds its maintenance a burden. The views otherwise available to the Stebers, but obstructed by the bamboo, are of significant value. I find the reasons to restore their views outweigh any reasons not to do so. 2. The bamboo would require frequent pruning to prevent it obstructing the Stebers' view. I am reluctant to make such onerous ongoing orders. For this reason I will order removal of the bamboo. Any future planting along this boundary should be restricted to the maximum fence height allowed here. Orders 1. For the reasons explained above, the orders of the Court are: 1. The application is granted. 2. Within 90 days of the date of these orders, the respondent is to remove all bamboo plants in the hedge along her eastern boundary. 3. The respondent is to take any steps necessary to prevent regrowth of the bamboo. 4. If the respondent wishes to plant a replacement hedge along this boundary, it must be maintained at a height no greater than 1.2 metres. ………………………………. D Galwey Acting Commissioner of the Court ********** Amendments 09 July 2019 - Correction to typographical errors at [12] and [16] 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: 09 July 2019