Land and Environment Court New South Wales Medium Neutral Citation: Stivic v Perantuono [2019] NSWLEC 1423 Hearing dates: 26 July 2019 Date of orders: 30 August 2019 Decision date: 30 August 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is granted. (2) Twice yearly during the months of September and March, beginning September 2019, the respondents are to prune, or engage a suitably experienced contractor to prune, all bamboo plants in the hedge along their eastern boundary so that no part of any bamboo plant is more than 3.5 metres above ground level measured from the base of each plant. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – obstruction of view – privacy – whether the view obstruction is severe Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140 Category: Principal judgment Parties: Vesna Stivic (Applicant) Raimondo Perantuono (First Respondent) Kaliopi Perantuono (Second Respondent) Representation: Solicitors: V Stivic, litigant in person (Applicant) J Ede, Wilshire Webb Staunton Beattie (Respondents) File Number(s): 2019/70116 Publication restriction: No Judgment Background 1. For some time, Vesna Stivic ('the applicant') has made attempts to get her Kyle Bay neighbours, Raimondo and Kaliopi Perantuono ('the respondents'), to prune their bamboo hedge. She asked them to maintain the bamboo at a height of 2.5 metres; they offered to maintain it at 4.5 metres, but have not carried out the pruning. 2. Ms Stivic applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for her neighbours to prune and maintain the bamboo at a height of 1.5 metres. 3. Ms Stivic represented herself at the onsite hearing held on 26 July. Mr Ede, solicitor, represented the Perantuonos, who relied on a report of Gerard Turisi, planner. Mr Turisi gave oral evidence at the hearing. 4. At the onsite hearing Ms Stivic clarified that she would be satisfied if the bamboo is maintained at a height of 3.5 metres. With Mr Turisi's evidence, the respondents said the bamboo should not be below the eave height of another neighbouring dwelling, from which they want to prevent overlooking. Mr Turisi suggested that is equivalent to a height of 5.2 metres. Framework for this decision 1. There is no dispute that the bamboo forms a hedge for the purposes of the Trees Act, and rises to more than 2.5 metres. Before I can make any orders I must be satisfied, firstly, that the bamboo is severely obstructing a view from Ms Stivic's dwelling (s 14E(2)(a)(ii) of the Trees Act), and secondly, that "…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" (s 14E(2)(b) of the Trees Act). That second test requires consideration of relevant matters set out at s 14F. The situation 1. The bamboo hedge grows for approximately 10 metres along the Perantuonos eastern boundary in their back garden. For a short section near their dwelling it is only a few metres tall, but for most of its length it is more than six or seven metres tall. 2. From within Ms Stivic's living room the water view available between the two neighbouring dwellings is largely obstructed by the bamboo. Standing at the room's sliding glass doors to the rear deck, the water view further to the west is available across the back part of the respondents' single-storey dwelling. The respondents' pool cannot be seen from here regardless of the bamboo. From the rear deck, further water views are available to the west, and from the edge of the deck nearest the respondents' property the bamboo minimises overlooking into the respondents' pool. 3. From that part of the deck farthest from the respondents' property, in front of the applicant's bedroom, the bamboo obstructs the entirety of the available water view. The applicant's submissions 1. Ms Stivic explained that she previously enjoyed broad water views before the bamboo grew up and obstructed those views in recent years. Most of her family's leisure time at home is spent in the living room, so they want to restore their views from there. They also spend time at the table on the deck. She explained that she has accepted the view obstruction from the lower level of her dwelling, but does not want to relinquish views from the principal living areas. 2. Ms Stivic pointed out that from most of the view points there is no significant overlooking issue into the respondents' pool. They spend little time at the corner of the deck where overlooking is possible. 3. Ms Stivic argued that the Georges River Development Control Plan protects views here across rear boundaries. Because the two side boundaries in the rear part of her property are not parallel, but converge at a point, she argued that the boundary with bamboo is effectively her rear boundary. 4. Ms Stivic said she expects the neighbouring dwelling will become a two-storey dwelling in the foreseeable future, at which time the view now obstructed by the bamboo will become even more important. 5. Ms Stivic suggested that her proposed orders to prune at 3.5 metres are a reasonable compromise between her initial request of 2.5 metres and the respondents' earlier offer of 4.5 metres. At 3.5 metres, she argued, her views would be restored while the bamboo would still provide some privacy for the respondents. 6. Ms Stivic stated that the bamboo's current height was unnecessary for privacy, so she felt it was more of a spite hedge. The respondents' submissions 1. Mr Ede submitted that the respondents required the bamboo for privacy and that it does not impact significantly on Ms Stivic's amenity. 2. Mr Ede argued that the view obstruction is not severe, or, if the Court found it is severe, it does not warrant any interference. He relied heavily on the evidence of Mr Turisi to support these submissions. 3. Applying the four-step approach for assessing impacts on view sharing established in Tenacity Consulting v Waringah [2004] NSWLEC 140 ('Tenacity'), Mr Turisi concluded that the view obstruction caused by the bamboo is minor, not severe. He was of the opinion that Ms Stivic still has extensive views; the view is across a side boundary; and the overall view from the rear deck is not severely affected. 4. Mr Ede argued that the bamboo is required for privacy, to prevent overlooking not only from the applicant's dwelling, but also from another neighbouring dwelling, into the respondents' garden and the living room at the rear of their dwelling. Mr Turisi formed an opinion that, to prevent overlooking into the living room, the bamboo's height must remain at the height of the eaves of that neighbouring dwelling. 5. Mr Ede argued that the overall views from the dwelling should be taken into consideration. Some water view is available through a window near the kitchen, closer to the front of the dwelling. Mr Ede pointed out that view loss from the applicant's bedroom should not be considered highly, as this is not a living area. Findings Do the trees cause a severe view obstruction? 1. In Tenacity, Roseth SC established an approach to assessing view sharing at [25]–[29]: 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 1. While many tree disputes under Part 2A of the Trees Act have referred to the approach in Tenacity, and in some cases it has been useful, its relevance to tree disputes is of course limited. As Roseth SC stated at [25] when setting out this approach (with my emphasis): "The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment." 2. The Tenacity approach addresses development that would usually require a consent, most commonly some residential building works. The planting of vegetation in residential gardens does not usually require development consent (although may be part of the conditions of such a consent). A development usually has a purpose, such as providing housing for people. The impacts on surrounding properties of such development need often to be assessed. Private plantings that are not part of the conditions of a development consent require no such consideration. 3. The planting of a hedge does not usually require consent. A hedge's principal purpose is often to provide a screen to prevent overlooking. Overlooking is commonly an issue along side boundaries, where planning controls might prevent buildings or tall screening structures. If I were to consider the bamboo within the framework of a development consent, its height would need to be consistent with the maximum height for a fence or privacy screen along this section of the boundary. 4. The bamboo obstructs the most valued part of the main view from the rear of Ms Stivic's dwelling: water and shoreline views. 5. The bamboo may be planted along the respondents' side boundary, but the view obstructed is the principal rear-facing view of the water from the back part of Ms Stivic's dwelling. Not all residential properties are rectangular with regular rear boundaries. Ms Stivic's side boundaries meet at a point at the rear of her property. 6. Tenacity's third step recognises that views from some parts of a dwelling are likely to be more important, or enjoyed more frequently, than those from other rooms. I don't doubt Ms Stivic's submission that most of her family's time is spent in the living room, from where large glass doors provide for water views. The bamboo obstructs most of the view from within the living room. 7. For describing the extent of the view obstruction, the terms "minor, moderate, severe or devastating" (Tenacity at [28]) are qualitative rather than quantitative. I take that approach here in assessing the impacts of the bamboo on Ms Stivic's view. Having considered the factors described above, I find the view loss is more than minor or moderate, and is less than devastating: it is severe. For Ms Stivic, the bamboo obstructs the most valued part of her view from the most used part of her dwelling. It is reasonable to expect that this view is maintained if possible. Matters at s 14F 1. I have considered the matters at s 14F and find several are relevant here. The bamboo is next to the common boundary, where it forms a tall screen. 2. Georges River Council lists this bamboo as an undesirable species, which does not mean it must be removed, but diminishes its priority for protection. 3. It is unreasonable to expect all overlooking can be avoided in most residential neighbourhoods. It would be unreasonable to install a 6-metre screen along the boundary in an effort to prevent overlooking. The bamboo effectively forms such a screen. 4. The bamboo is some distance from the dwelling on the other property adjoining the respondents' eastern boundary. Preventing overlooking from that property into the respondents' dwelling would not require the bamboo to be as high as the eaves of the neighbouring dwelling. Pruning at 3.5 metres would prevent some overlooking into the respondents' garden, but may allow overlooking into the dwelling. Nevertheless, for the reasons described above, I consider the applicant's expectation to restore her view is more reasonable than the respondents' expectation to prevent all overlooking. 5. The bamboo contributes amenity to the respondents' property, but has only minor environmental or social benefits beyond that. Conclusions 1. Weighing up the above, I find the reasons to restore the applicant's view outweigh the respondents' reasons to maintain their bamboo at a greater height. 2. Pruning to the height requested by Ms Stivic should restore her view and maintain some screening for the respondents. The bamboo grows so quickly that annual pruning is unlikely to provide sufficient remedy. Orders will be made to prune the bamboo twice each year. Orders 1. For the reasons explained above, the orders of the Court are: 1. The application is granted. 2. Twice yearly during the months of September and March, beginning September 2019, the respondents are to prune, or engage a suitably experienced contractor to prune, all bamboo plants in the hedge along their eastern boundary so that no part of any bamboo plant is more than 3.5 metres above ground level measured from the base of each plant. ………………………………. D Galwey 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: 12 September 2019