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Hedge today, gone
tomorrow? A guide to recovering your view when your
neighbour grows a hedge for privacy
A high hedge of bamboo is a popular privacy screen. But is
one neighbour’s privacy more important than another
neighbour’s view?
The answer lies in the Trees (Disputes Between Neighbours)
Act 2006 (NSW) (the Trees Act). The Trees Act makes growing
a hedge above 2.5 metres high a private nuisance. The Trees
Act sets out the circumstances in which a hedge is allowed
to remain, is pruned or removed.
The decision of Robinson v Nagel [2021] NSWLEC 1356 (18 June
2021), a decision of Acting Commissioner Galwey of the Land
and Environment Court of NSW, provides a useful guide to
satisfying the requirements under the Trees Act before a
neighbour’s hedge can be removed to recover a view.
Background
The Robinsons’ house is at Balgowlah Heights, near Manly,
in Sydney. The Nagels’ house is at the rear, below the
Robinsons’ house, on a gentle slope down to Middle Harbour.
When the Robinsons purchased their house in 2009, they
enjoyed water views of Middle Harbour across to Balmoral
Beach, over the Nagels’ property.
In 2011, the Nagels extended their house and obscured some
of the view previously enjoyed from the Robinsons’ house.
In 2013 the Nagels began planting Slender Weaver Bamboo (Bambusa
var. textilis Gracilis) inside the dividing fence between
their property and the Robinsons’ property. The Nagels said
that the bamboo was planted to provide privacy for the new
extensions to their house and their garden, and to address
‘nuisance lighting’ from the Robinsons’ house.
By 2020-2021, the bamboo hedge had grown to at least 4
metres in height and obstructed most of the water and beach
views. These are the ‘before’ (left) and ‘after’ (right)
photos:
After several unsuccessful attempts to have the Nagels prune
the bamboo hedge to 2.5 metres, the Robinsons made an
application to the NSW Land and Environment Court under Part
2A of the Trees Act for orders that the Nagels either prune
or remove the bamboo hedge.
The hearing was held on-site.
The Decision
The Robinsons had to satisfy four requirements under the
Trees Act to obtain their orders.
- Was the bamboo a hedge?
Under section 14A of the Trees Act, a hedge is defined
as “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).”
Under regulation 4, bamboo is included within the
definition of ‘tree’.
The Nagels said that the bamboo did not form a hedge
because it was planted in four stages between 2013 and
2017.
The Commissioner rejected this, saying that all four
plantings “form a single hedge / a single row of bamboo
approximately 6.5 metres long.”, and it is “a dense
screen of foliage, hedge-like in nature”.
The Commissioner cited with approval this passage from
Wisdom v Payn [2011] NSWLEC 1012:
“We are satisfied that the words forming a hedge mean
that there must be a degree of regularity and
arrangement, in a linear fashion, of the trees being
considered. … such arrangement may be more than one tree
deep and does not need to be in a perfectly straight
line”.
The requirement at s 14B of the Trees Act that the Nagels’ land on which the bamboo grows
adjoins the
Robinsons’ land was also satisfied.
- Did the Robinsons make reasonable effort to reach
agreement with the tree owners?
The Commissioner was satisfied that the Robinsons had
made reasonable efforts (s 14E(1)). They “asked the
Nagels to prune the bamboo prior to making their
application. The Nagels have been steadfast in their
refusal to accommodate the Robinsons’ request.”
They also obtained an arboricultural assessment which
they gave to the Robinsons before commencing
proceedings.
- Did the trees severely obstruct a view from the
dwelling?
Under s 14E(2)(a)(ii) of the Trees Act, the trees must
be “severely obstructing a view from a dwelling situated
on the applicant’s land”.
The Commissioner described the Robinsons’ view in this
way: “No view of any significance is available from
their ground floor, but from the first floor the
southward view takes in the water of Middle Harbour
across to Balmoral Beach, making for a very pleasant
view.” He found that the bamboo obstructed the view from
a living area in the centre of the first floor.
He then turned to: “assessing the potential loss of a
view, especially the loss of parts of an overall view”.
He said: “Here, the bamboo has grown up into the most
valued parts of the Robinsons’ view, so that it
obstructs more than half of the available water and
beach views.” He dismissed the attempt made by the
Nagels to mitigate the loss of view by tying together
some of the bamboo stems, “creating narrow gaps in the
screen”, saying that with further growth the bamboo’s
screening effect will again be continuous.
He concluded: “Considering the value of the landscape
elements obstructed by the bamboo, when compared with
the remaining parts of the view, I find the obstruction
is severe.”
- Balancing issues of privacy, amenity and the
response of bamboo to pruning
Under s 14E(2)(b) of the Trees Act, the Court must be
satisfied that:
“(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 Commissioner considered these matters (listed in s
14F of the Trees Act):
Location – “The bamboo is planted along the Nagels’ rear
boundary fence, less than half a metre from the
Robinsons’ land”. Its location is therefore close to the
boundary and to the Robinsons’ dwelling.
Timing – “The hedge has been planted and grown into the
Robinsons’ principal view during the period they have
occupied the property.” The Commissioner was satisfied
that the Robinsons had the view before the bamboo grew
to a height of 2.5 metres.
Permit requirements – “Removing or pruning the bamboo
would not require consent from Northern Beaches Council;
nor would this require any other consent.” The
Commissioner was satisfied that the bamboo was not part
of any condition in the Nagels’ development consent for
changes to their property.
Social and economic benefits – “While all trees bring
some benefits, this hedge provides little in the way of
benefits … It is an introduced species that, in this
situation, provides no significant habitat or other
environmental benefits.”
The neighbour’s amenity and landscape – “The Nagels have
other vegetation that contributes most of the greening
and visual softening to their landscape. Pruning or
removing the bamboo would not significantly affect the
Nagels’ landscape.”
Privacy – This was the most important issue to the Nagels. The Commissioner examined the affected areas and
said: “The fence and the lattice [between the
properties] appear to provide sufficient screening to
limit any overlooking onto their pool and garden. …
[From] the upper level of their dwelling … two windowed
rooms face the Robinsons’ dwelling. One room … a study …
contained an exercise bike, the other room is the Nagels’
onsuite. Both have shutters that can be closed.”
“The Robinsons’ dwelling is more than 30 metres from the
Nagels’. Considering this distance, along with the
nature of the Nagels’ rooms and the extent of the
existing screening, I do not see any significant privacy
issue for them.”
As to the lights on the Robinson’s rear deck, “due to
the distance between these dwellings, the issue seems
relatively minor.”
Other features obstructing the view – The Commissioner
dismissed the argument that “two trees on a property
adjacent to the Nagels’ property will grow into the
view” by noting that “the hedge obscures the most valued
part of the Robinson’s view” and that the hedge “is
something they might have some control over, through
this application”.
Nature of the hedge – The Commissioner said: “The bamboo
is evergreen, providing a dense screen throughout the
year. It grows quickly.” According to the arborist “the
hedge would reach 8 metres or more in height”.
Impacts of pruning the bamboo – The Nagels contended
that if the bamboo was to be pruned, it should be once
only. The Commissioner weighed up the factors in this is
way: “Pruning the bamboo once, to the lattice height,
would restore the Robinsons’ view. Preventing the
obstruction recurring would require regular pruning. The
bamboo is not easy to access, being in a narrow gap
between the lattice screen and the fence. … the burden
to the Nagels of ongoing pruning orders outweighs any
loss to them that might result from removing the bamboo.
… I find that removing the bamboo would provide the most
efficient remedy and prevention of the view obstruction,
and the greatest potential for finally resolving the
dispute between these neighbours.”
Steps taken by the parties – The Nagels argued that they
only planted the bamboo because the Robinsons had
removed strelitzia trees from their side of the boundary
to obtain the view, and therefore the view obstruction
results from the Robinsons’ actions in removing the
strezlitza. The Commissioner rejected this: “It is only
the Nagels who are responsible for planting the bamboo
and for its current height.”
The affected part of the dwelling – The view was most
impacted from the Robinsons’ first-floor living room,
“an area where family and visitors might reasonably
spend time”.
The Court Orders
The Court made these orders for removal:
- Within 30 days of the date of these orders the Nagels
are to engage a suitably experienced contractor, with
all appropriate insurances, to remove all bamboo growing
along their rear boundary
- The Nagels are then to take any steps necessary to
prevent the bamboo regrowing.
The Court made this order to ‘future- proof’ the orders:
- Any further hedge planting along the Robinsons’ rear
boundary is to be of a species that grows to no more than 2
metres in height at maturity.
Can the Tree Act be used to
protect non-water views?
When discussing the view (see part 3 above), the
Commissioner made the point that the view assessment
principle set out in Tenacity Consulting v Waringah (2004)
134 LGERA 23; [2004] NSWLEC 140 is not restricted to water
views, or to iconic views such as the Opera House, the
Harbour Bridge or North Head.
He said that ‘loss of view cases’ can be brought to protect
a wide variety of views such as “a view without iconic
features – perhaps a view of parkland, or the suburban
landscape”.
So, the answer is ‘yes’.
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