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:
1. 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
2. The Nagels are then to take any steps necessary to prevent the bamboo regrowing.
The Court made this order to ‘future- proof’ the orders:
3. 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’.