THE NSW Land and Environment Court has ordered a lakefront home owner to remove a bamboo screening hedge deemed to have caused severe obstruction to sunlight and the lake views of their next-door neighbour.
The respondent homeowner told the court they had planted the hedge to provide them with privacy as the neighbour was constructing a two-storey home.
But the court found the views blocked by the hedge were "of significant value" to the neighbour [the applicant], and the reasons to restore those views "outweigh any reasons not to do so".
The court said the hedge provided some screening to the respondent's back garden, but by no means made the garden "private".
Beyond that, the bamboo provided "little in the way of benefits".
Consideration was given to issuing orders for the respondent to trim and maintain the hedge, but the court said maintaining the bamboo was a burden, so it opted against making "such onerous ongoing orders".
Instead, the court ordered that the bamboo be removed.
The case was an interesting application of The Tree Act, introduced in 2006 to provide an avenue for neighbours to resolve disputes involving trees through a simple and inexpensive process that doesn't require a lawyer (although applicants or respondents can choose to engage one).
The applicant in this case did not engage a lawyer. The schedule of court fees shows the cost of filing "an originating process" in such a case is $253.
In 2010, the Tree Act was amended to allow people to apply for orders where trees in neighbouring hedges obstruct their sunlight or views.
Acting Commissioner David Galwey said the Act did not assume a person 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," Acting Commissioner Galwey said in his decision on the case.
So, what do locals need to know before planting a hedge? And what can residents do if their neighbour's hedge has become a growing concern?
First, some definitions.
Bamboo is considered a tree for the purposes of the Trees Act.
To be deemed a hedge, the plantings must contain more than one tree.
And the trees must be planted, not self-sown, with the intent at the time of planting to form a hedge.
Finally, the trees in question must rise to at least 2.5 metres above the ground level in order for them to be the subject of an application to the court for orders.
Residents who plan to plant a hedge are advised to do their homework. Know the growing habit of the plant and, if necessary, consider the installation of root barriers to protect against damage caused by intrusive root networks.
Even better, they should peruse the Land and Environment Court website for useful material on tree disputes.
But if a neighbour's hedge is becoming a problem, it's not only a good idea to have a chat with the neighbour with a view to resolving the issue, it's a requirement if you ultimately seek court orders.
Indeed, the court cannot make an order unless it is satisfied that the applicant has made "a reasonable effort" to resolve the matter with the owner of the land on which the troublesome tree or hedge is located.
Applications under the Trees Act are usually dealt with within three months of filing of the application. The most common means of resolving tree disputes is by a hearing.
However, the parties can seek to have their tree dispute resolved by other means, including conciliation, mediation and neutral evaluation.
Visit the Land and Environment Court website lec.justice.nsw.gov.au for more.
Council stays out of hedges
LAKE Macquarie City Council said it did not intend to alter its advice or any planning instrument to limit hedge heights on privately owned land because it had no regulatory power to do so.
This is despite the recent NSW Land and Environment Court order for a lakefront resident to remove a bamboo hedge they had planted for privacy from their next-door neighbour's two-storey house (see story on opposite page).
"Generally, council has no regulatory power to control the planting of vegetation on private property," a spokesperson for the council said.
"This is deemed a civil matter covered by NSW state legislation Trees (Disputes Between Neighbours) Act 2006."
An application is required to be lodged with council, however, before pruning or removing a NSW native tree or Norfolk Island pine from any private property in Lake Macquarie.
The council said residents in dispute over trees or hedges who can't resolve the matter themselves may "wish to seek legal advice from a solicitor, the Community Justice Centre, chamber magistrate at a local court, or the Land and Environment Court".
Council said the species of bamboo in this case was not deemed by Department of Primary Industries to have a high risk rating because it did not pose an impact "on human health, agriculture or to the environment".