Background
Michelle Hittmann owned a home in Vincentia adjoining Amanda Woodlands and Jacqueline Algie’s property. The respondents had planted slender weavers bamboo along their western boundary, shared with Ms Hittmann, and along their southern boundary to create privacy screens. The bamboo formed two hedges, each exceeding 2.5 metres in height.
Ms Hittmann applied under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking orders requiring the bamboo to be cut to 2.5 metres and maintained at that height. She said it severely obstructed eastward views of the Jervis Bay area, Point Perpendicular, Bowen Island and Murray Beach from living areas, a deck, a stair landing and a bedroom. The respondents said they had pruned the bamboo and would continue maintaining it at a height that protected their privacy without severely obstructing the views.
The Court’s Holding
Acting Commissioner Galwey refused the application. Bamboo was a “tree” under the applicable regulation, and the plantings satisfied Part 2A’s threshold requirements because they were planted as, and continued to form, hedges above 2.5 metres. The pruning and ongoing-maintenance orders sought were within the Court’s available powers.
But the statutory precondition for relief was not met: the hedges did not severely obstruct a view from Ms Hittmann’s dwelling. At the principal living-area viewing points, the broad view and its main features remained available; Point Perpendicular was obscured only from one position and could be seen by moving slightly. The bamboo did not obstruct views from the stair landing or bedroom on the hearing day, and other vegetation would cause greater obstruction even if the bamboo grew taller. The Court accepted the respondents’ evidence that they would regularly maintain the hedges, making future severe obstruction unlikely. It therefore could not make orders under s 14E(2) of the Act.
Key Takeaways
- A bamboo privacy screen can fall within Part 2A of the Trees Act where it is planted and remains as a hedge exceeding 2.5 metres.
- Orders require an actual severe view obstruction, not merely concern that vegetation could obstruct views if left unmaintained.
- Credible evidence of regular pruning may distinguish a case from one where severe obstruction is likely to recur.
Why It Matters
The decision confirms that Part 2A is a limited remedy. It does not permit orders simply to reassure a neighbour or to impose their preferred hedge height where the current view impact is not severe and the evidence shows the hedge will be maintained.
It also illustrates the Court’s practical, site-specific assessment of views: the availability of the overall view, the viewing location, movement within the property, and obstruction from other vegetation all matter.