Ortlipp v Bowyer[2017] QCAT 225

REASONS FOR DECISION

Background and Chronology

1. [1]
   The respondents, Mr Bowyer and Ms Whittle, purchased the property situated at 89 Nadine St, Graceville in December 2010. The single storey residence on the land fronts Nadine St and is across the road from the Graceville Riverside Park and the Brisbane River.
2. [2]
   Directly behind their property and sharing a common boundary is 8 Jaora St on which, at the time they acquired their property, was located a single storey residence fronting Jaora St.
3. [3]
   In April 2012, the then owners of 8 Jaora St (the Millers) approached Mr Bowyer and Ms Whittle with plans for the construction of a new dwelling on 8 Jaora St. Mr Bowyer and Ms Whittle believe that they were misled by the Millers in respect of the nature and scale of the proposed new dwelling.
4. [4]
   The house constructed by the Millers, which has been referred to throughout these proceedings as the ‘container house’ was constructed from steel shipping containers, approximately 3m from the rear boundary of Mr Bowyer’s and Ms Whittle’s land.
5. [5]
   Construction of the container house was completed in July 2013. The Millers placed the house on the market shortly after. It was passed in at auction on 1 December 2013.
6. [6]
   Mr Ortlipp and Ms Burgess inspected the property in June 2014. They went to contract after that inspection and took possession of the house on 22 September 2014.
7. [7]
   Within months of taking possession Mr Ortlipp and Ms Burgess were at odds with Mr Bowyer and Ms Whittle about bamboo planted by Mr Bowyer and Ms Whittle near their common boundary. The respective versions of the increasingly unpleasant exchanges between them are set out in their witness statements. Mr Ortlipp and Ms Burgess filed their application in the Tribunal on 11 March 2016.

The application and response

8. [8]
   Mr Ortlipp and Ms Burgess have asked the Tribunal to remedy a substantial ongoing and unreasonable interference with the use and enjoyment of their land.^[1]
9. [9]
   That interference is particularised by them as including:^[2]

   1. Severe obstruction of sunlight to the windows of our main living area of our home;
   2. Obstruction and interruption of access to natural breeze/ventilation;
   3. Severe obstruction of the view that existed when we took possession of the house and land;
   4. Excessive leaf litter generated from the bamboo plants impacting our outdoor living spaces and use and enjoyment of our pool.
10. [10]
    The application also raised the issue of the bamboo causing damage to the container house, but this does not appear to be persisted with at the hearing, and no evidence of damage was given.
11. [11]
    The relief they seek in the application is removal of the bamboo, but in his evidence Mr Ortlipp suggested that trimming or pruning of the bamboo would be an adequate remedy.
12. [12]
    Mr Bowyer and Ms Whittle respond that there is no substantial ongoing and unreasonable interference with the use and enjoyment of the applicants’ land. In particular they say that there is no severe obstruction to sunlight, breezes or view. Further they say that if severe obstruction should be found, it is not appropriate in all the circumstances, and in particular the severe impact of the container house on their privacy, for the Tribunal to exercise what is a discretionary statutory remedy. The application should be dismissed, they say, with costs.
13. [13]
    The application was heard over two days on 23 and 24 February 2017. The Tribunal had the benefit of a view on the first day of the hearing at the conclusion of expert evidence.

The container house and the bamboo

14. [14]
    The construction of the container house featured on the ‘Grand Designs Australia’ television show. It is a house likely to divide opinion.
15. [15]
    It is constructed from shipping containers, some 31 of them according to Mr Bowyer.^[3]
16. [16]
    The northern elevation is set back approximately 3m from the common boundary and is parallel to it. The container house is 9.5m high at its northern elevation and has three levels. The ground and second levels of the northern elevation are approximately 15m in length.
17. [17]
    The ground level contains an entryway, garage, workshop, gym studio/home office and rumpus room. Off the rumpus room there is a deck and small swimming pool near the common boundaries of the property.
18. [18]
    The second level features a laundry and open plan kitchen, dining and living area facing north, with bedrooms facing south. There is a small deck off the living area near Jaora St. The northern elevation of the second level has floor to ceiling glass.
19. [19]
    The third level is a main bedroom suite of rooms. The area and the roof is smaller than the other levels is set back with a deck on the northern elevation.
20. [20]
    A floor plan of the container house is included in exhibit 2, as is a photograph of the northern elevation during construction.
21. [21]
    Mr Ortlipp and Ms Burgess were not involved in the design or construction of the container house. Mr Ortlipp submitted during proceedings that evidence given by Mr Bowyer and Ms Whittle, and their witness Karen Baker, of the conduct or misconduct of the Millers before and during construction is irrelevant to these proceedings. I agree. Any objection to the Millers behaviour does not run with the land. Mr Ortlipp says that it ‘has been constructed in accordance with the required building codes and has been certified’.^[4]
22. [22]
    Further, Mr Ortlipp says its height, bulk and orientation of living areas to the north is consistent with a number of other redeveloped properties in the area.^[5]
23. [23]
    Like the container house, bamboo tends to provoke strong opinion, both positive and negative. Moreover, like the container house, it is the height, bulk and siting of the bamboo that is of concern to the other party.
24. [24]
    Having failed to persuade the Brisbane City Council to intervene, Mr Bowyer and Ms Whittle decided the best solution was to plant plants that would screen the container house and prevent it from overlooking their property.
25. [25]
    They sought professional advice and decided on a mixture of species of clumping non-invasive bamboo and mature palms.
26. [26]
    At the end of June 2013, they planted seven mature palms up to 5m tall, and six clumps of bamboo of three different species approximately 1.5m north of the common boundary.
27. [27]
    The length of the combined planting is 12m running roughly from the Jaora St frontage of the container house, to the laundry on second level.
28. [28]
    The bamboo species were approximately 2m tall when planted in June 2013. They are now at their mature height which varies between species between 6-10m. The taller thicker species are in the middle of the planting.
29. [29]
    It is Mr Bowyer and Ms Whittle’s evidence, which I accept, that they maintain the planting meticulously, removing new culms which may grow towards the container house, or which shoot in the buffer zone between the plants and boundary fence. The clumps are also selectively pruned at ground level once per year during the late summer to reduce their density.
30. [30]
    Mr Ortlipp and Ms Burgess have no objection to the palms. It is the bamboo which prompts their application.

Excessive leaf litter

31. [31]
    Leaf litter itself will not generally justify an order by the Tribunal to remedy, restrain or prevent interference with land.^[6] That is the case here.
32. [32]
    Mr Ortlipp has given evidence of a large amount of leaf litter in his pool, and that is supported to an extent by photographs he provided with his application. I am satisfied that any problem caused by the leaf litter could be resolved by regular cleaning of the pool itself.

Obstruction of breezes and sunlight

33. [33]
    As the applicants in these proceedings, Mr Ortlipp and Ms Burgess bear the onus of proving their case, and in relation to the issues of obstruction of sunlight and breezes they have failed to discharge that onus.
34. [34]
    Other than asserting that there is an interference with breezes, there appears to be no evidence of the nature and extent of that interference and its effect on ventilation of the container house. It is not difficult to imagine a degree of interference but the mere assertion of it does not provide a basis for an order for removal or trimming of the bamboo.
35. [35]
    Each of the experts included in their reports some computer modelling shadow analysis. Both purport to show the angles of the sun between 8:00am and 12:00 noon in mid-winter.
36. [36]
    Each is critical of the others modelling.
37. [37]
    I have reservations as to whether an obstruction of sunlight on one winter’s day could be considered a severe obstruction for the purposes of s 66 of the ND Act. However, while I accept that there must be some significant obstruction, the extent of it is still unclear.
38. [38]
    Mr Chenoweth opines that the second level living area would receive filtered sunlight during those times, but does not assist further. The filtering of the sunlight by the bamboo is the basis of Mr Ortlipp and Ms Burgess’ application.
39. [39]
    I have difficulty attaching any weight to the evidence of Mr Curtis in this regard. During cross-examination he confirmed that he had not attended either property before writing his report or attending the experts’ conclave. Further, he did not carry out or supervise the shadow analysis model, it was done by an unidentified colleague of Mr Ortlipp.
40. [40]
    Once again, it is not difficult to imagine that the bamboo will cause some obstruction of sunlight. There is insufficient evidence to establish that such an obstruction is sufficiently severe to justify a remedy under the ND Act.

The legislation

41. [41]
    There are a number of threshold issues under the ND Act which must be satisfied before the Tribunal may make orders under s 66. I am satisfied that:

    1. Mr Bowyer and Ms Whittle are a tree-keeper;^[7]
    2. Mr Ortlipp and Ms Burgess are a neighbour;^[8]
    3. The bamboo is a tree;^[9]
    4. Reasonable efforts have been made by Mr Ortlipp and Ms Burgess to reach agreement in relation to the bamboo with Mr Bowyer and Ms Whittle.^[10]
42. [42]
    Section 66 of the ND Act provides that the Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land, relevantly here to remedy, restrain or prevent substantial ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[11]
43. [43]
    Where the application, as it is here, is in respect of interference with sunlight or a view, the Tribunal may only make orders under s 66(2) if:^[12]

    1. The tree is at least 2.5m in height;
    2. There is severe obstruction of sunlight to a window or roof; or
    3. There is severe obstruction of a view, from a dwelling on the neighbour’s land, that exists when the neighbour took possession of the land.
44. [44]
    In Laing & Anor v Kokkinos & Anor (No 2) (Laing),^[13] Wilson J set out a three step process which the Tribunal must follow when determining applications for orders under s 66(3)(b)(ii) of the ND Act as follows:^[14]

First, the Tribunal must consider what view existed when the applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, if they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, ss 72, 73 and 75.

View at possession

45. [45]
    While the application filed in the Tribunal specifies obstructed views on the second and third level of the container house, it is Mr Ortlipp’s evidence that his real concerns relate to obstruction of views from the living area of the container house on level two. It is uncontroversial that the obstruction of views on the second level is greater than the obstruction on the third. It follows then that if the obstruction views on the second level is not considered severe, it will certainly not be considered severe on the third level.
46. [46]
    The term ‘view’ is not defined in the ND Act. In Laing, Wilson J, adopting a decision of the New South Wales Land and Environment Court in Haindl v Daisch,^[15] described a ‘view’ as:^[16]

… the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

47. [47]
    In his visual amenity expert statement, Mr Chenoweth described the views as follows:^[17]

Northerly views from 8 Jaora Street are to the Brisbane River and associated riverbank trees, seen across the roof of (or on either side of) the respondent’s single-storey house…

48. [48]
    Mr Ortlipp and Ms Burgess did not, either in their application or statements of evidence, attempt to define the view. In oral evidence, Mr Ortlipp referred to it as ‘urban vistas’ and the view ‘over and around [Mr Bowyer and Ms Whittle’s] house’.
49. [49]
    Mr Bowyer and Ms Whittle described the view in detail in their written submissions.^[18]
50. [50]
    It is uncontroversial that Mr Ortlipp and Ms Burgess took possession of the land on 22 September 2014.
51. [51]
    They say, at that time, the bamboo could not be seen from their home. It was not visible over the fence on the common boundary for some four months after possession.^[19]
52. [52]
    Mr Ortlipp’s statement of evidence includes two photographs labelled ‘Pre-settlement inspection’ taken on an unspecified date between June 2014 and the date of possession from the ground level of the container house and the pool area on the ground level, which appear to show the bamboo above the fence line.
53. [53]
    Mr Bowyer and Ms Whittle ‘clearly remember that [the] bamboo plants were at least up to the height of the handrail on the third level of the container house around late September 2014 when the applicants took possession’.^[20] They say that their memory is reliable because they manage the tenancy, regularly attend and drive-by the property and were actively involved and caring for the bamboo. Their assessment is made from the ground looking up, rather than from the container house looking out.
54. [54]
    Attachment B to the joint experts’ report contains a number of site photographs. One photograph, labelled Figure B7 is a view of the bamboo hedge from the corner of Nadine and Jaora Streets. The source is said to be the applicants and the relevant date 16 August 2014. It shows curling tips of the bamboo, some of which appear to be level with or slightly above the floor of the third level of the container house. Two further photographs labelled Figure B8 and Figure B9 are views respectively north-east and north-west from floor two. They purport to be images taken by the applicants on 25 October 2014.
55. [55]
    In his second report, Mr Chenoweth stated:^[21]

The bamboo was reportedly around 2m tall at the time of planting (as advised by the respondents), it appears… to have been around 7.4m tall after 20 months growth indicating an average growth rate for the tallest species of 270mm per month…

At these growth rates, the bamboo would have been at least 6m tall when the applicants took possession of the container house in September 2014 and the culms and foliage would probably have been at or above the ceiling of their second living level. This is consistent with the bamboo supplier’s opinion regarding the likely height in September 2014. The bamboo would have been clearly evident at the time of possession and in my opinion it would have intruded on the filtered river views from level two at that time.

56. [56]
    In the joint experts’ report he reiterated that view:^[22]

…AC considers that the bamboo would have been at least 5 or 6 m tall at the time of possession (September 2014), as confirmed by a photograph reportedly taken on 16 August 2014 (Attachment B Figure B7). The culms (stalks) would have been obvious and visible through the living area windows of the applicants house, and views towards the river at that time would have included at least some bamboo culms (Figures B8 & B9, dated 25 October 2014). However AC accepts that the number of bamboo culms and foliage density seen through these windows would have increased since then…

57. [57]
    I am satisfied at the date of possession the faster growing species of bamboo would have reached a height of between 5m and 6m and would have been visible at the second level of the container house, but having regard to the photographs relied on by Mr Bowyer and Ms Whittle, the visible immature bamboo tips were relatively sparse and did not cause a significant impedance to the views available from the second level of the container house. I am also satisfied that the number of bamboo culms and the foliage density seen through those windows has substantially increased since then. The mature bamboo does obstruct the northerly views available from the second level of the container house.
58. [58]
    The view that Mr Ortlipp and Ms Burgess seek to protect is a view filtered through sparse immature arching bamboo culms over and around the line of houses in front of their property and includes views of the houses to the north, the Brisbane River, Graceville riverside park, riverbank trees, Indooroopilly Island and the sky. The prominence of various aspects of that view will vary depending on the viewing location in the second level living area.

Is the obstruction serious?

59. [59]
    In Laing, Wilson J said (footnotes omitted):^[23]

The term ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. The Macquarie Dictionary defines ‘severe’ in the following terms: ‘harshly extreme’; ‘causing discomfort or distress by extreme character or conditions’ and ‘hard to endure’. During Parliamentary Debates, the then Attorney-General commented: ‘The severity threshold requires that the view must be nearly blocked out.’ Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.

60. [60]
    In Laing, Wilson J applied the first three steps of a four step process adopted in Tenacity Consulting v Warringah.^[24]
61. [61]
    The three tests are as follows:

    1. Identify and value the type of views affected;
    2. Identify the part of the dwelling the views exist from and the reasonableness of protecting views from such areas; and
    3. Assess the impact of the interference to the views of the whole property, not just the view that is affected.
62. [62]
    The value of the view is not limited to the views or glimpses of the river itself. The other elements, the park and the trees for instance are also important elements of the view. The northerly view from the second level is easily the most attractive view. The area from which the view may be seen contains the kitchen, dining and living rooms. It is, according to Mr Ortlipp, the hub of the house. It is where they prepare and eat their meals and is the meeting area for the family and its guests.
63. [63]
    The northern wall of the second level is floor to ceiling glass.
64. [64]
    Within 5m of that glass wall is a bamboo screen approximately 12m long and 6m to 10m high. Mature bamboo culms are visible from floor to ceiling from the deck to the at the western end and the laundry at the eastern end.
65. [65]
    Both Mr Bowyer and Ms Whittle, and their expert Mr Chenoweth, point out that Mr Ortlipp and Ms Burgess still have views of the river from the deck and laundry on level two, comparable to those at the date of possession.^[25] Mr Ortlipp and Mr Burgess have not taken issue with that and that is not the view they seek to protect. In submissions Mr Bowyer and Ms Whittle say that Mr Ortlipp and Ms Burgess have ‘filtered partial views of the river available from the main living area like the ones they had at possession…’.^[26]
66. [66]
    Mr Chenoweth says that at 11 October 2016, ‘the Bamboo is currently causing some obstruction to northerly views from the second level living room and kitchen of the applicants’ house… but is not causing complete blockage’.^[27]
67. [67]
    I do not agree with the respondents that the current view from the living area of level two, after more than two years growth, is comparable with the views they had at the date of possession.
68. [68]
    I agree with Mr Chenoweth that the bamboo does not completely block the views, but the parts of the view that are now available are so fragmented and devoid of context that the view as a whole is lost. It is possible to see certain elements of the view from certain viewing positions. It is, however, like looking at the pieces of an unassembled jigsaw puzzle.
69. [69]
    Accordingly, I am satisfied that the northerly view from the second level living area is severely obstructed by the bamboo. I am satisfied that the view is nearly blocked out.

Is there a substantial ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land?

70. [70]
    Having decided that the obstruction of the view is a severe one, it does not automatically follow that the interference with the use and enjoyment of the land is substantial, ongoing and unreasonable. In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford,^[28] the Appeal Tribunal identified a number of factors relevant to determining whether an interference is substantial, ongoing and unreasonable for the purposes of s 66(2)(b)(ii) of the ND Act, namely:^[29]

1. What is the nature and extent of the harm or interference said to be caused by the tree?

2. Is the neighbour abnormally sensitive to the harm or interference said to be caused by the tree?

3. Have all reasonable steps been taken by the tree keeper to minimise the harm or interference said to be caused by the tree?

4. What is the type and extent of damage claimed to have been suffered by the neighbour?

71. [71]
    Mr Bowyer and Ms Whittle say three things in respect of those factors. Namely:

    1. The interference is not substantial because views from the main living area similar to those at the date of possession still exist, nor is it unreasonable because the views are available from the main living area;
    2. Mr Ortlipp and Ms Burgess are hypersensitive because of the extreme amount of glass on the northern elevation of their house and their commitment to sustainable design; and
    3. They have taken reasonable steps to minimise the interference.
72. [72]
    For the reasons I gave earlier, I do not accept that the views from the main living area now are comparable to the views from that area at possession. I do not accept that there are any views, other than fragmented ones available from the main living area.
73. [73]
    Nor do I accept that Mr Ortlipp and Ms Burgess are hypersensitive, or abnormally sensitive, to the harm or interference caused. They did not design or build the container house. It is not unreasonable for them to retain the floor to ceiling glass already constructed. The adoption of a less sustainable approach by the introduction of lights and air-conditioners and the like will not assist the obstruction of the views and that is the obstruction complained of.
74. [74]
    I accept that the obstruction of the views could have been worse. By allowing the bamboo to thicken the view could have been totally obscured. I also accept that the lower height and density of the species planted at each end of the screen does not severely obstruct views from the deck and laundry of the second level, perceived by Mr Bowyer and Ms Whittle to be the best views, but I do not accept that the harm has been minimised.
75. [75]
    The bamboo screen is planted to prevent the container house from overlooking 89 Nadine St from the second and third level. If it succeeds in that purpose it is almost inevitable that severe obstruction will be caused to the views from at least level two. That is in fact what has occurred.
76. [76]
    The facts in this case can be contrasted with those in both Laing and Neverfail. This is not a case where neighbours are trying to protect segmented views from particular and precise viewing locations. Mr Ortlipp and Ms Burgess’ complaint here is the whole of the northern view from the second level has been severely obstructed. Mr Ortlipp’s oral evidence is that he feels ‘enclosed’ by the bamboo screen. My observations from the view support that. It is not possible from the second level looking north to determine where the house sits in its surroundings. There is no outlook, let alone a view.
77. [77]
    It is the evidence of Mr Bowyer and Ms Whittle that they carried out their annual prune of the bamboo shortly before the view was undertaken. I accept that that was not for the purposes of the hearing, but rather their regular maintenance routine. It is also their evidence that between now and the next annual maintenance the density of the foliage will thicken. That is supported by Mr Chenoweth. I am satisfied that the interference is ongoing and will in fact get worse until the next annual pruning of the bamboo.
78. [78]
    In those circumstances I am satisfied that the severe obstruction of the view is a substantial ongoing and unreasonable interference of Mr Ortlipp and Ms Burgess’ land.

Should a tree order be made?

79. [79]
    In considering whether to exercise its discretion to remedy a substantial, ongoing and unreasonable interference, the Tribunal is obliged to consider the matters set out in Division 4 of Chapter 3 of the ND Act.
80. [80]
    The specific matters which Mr Bowyer and Ms Whittle want the Tribunal to consider are set out at paragraphs [108]-[163] of their written submissions.
81. [81]
    The foremost among these matters is the contribution the tree makes to the amenity of Mr Bowyer and Ms Whittle’s land.^[30]
82. [82]
    They say that the bamboo provides protection from ‘glare, light pollution and noise’,^[31] helps ‘mitigate the adverse visual impact and overbearing nature of the container house’,^[32] and improves both privacy for them^[33] and the occupants of the container house.^[34]
83. [83]
    Further they say that the adverse impact of the container house on the amenity of their property has resulted in a loss of rental income and a diminution in the value of their property.^[35] The bamboo will provide privacy when they construct their new three level house on their property.^[36]
84. [84]
    They have described themselves as ‘victims’,^[37] and ‘animals in a zoo exhibit’.^[38] They say that this bamboo is a modest, reasonable and considerate response to the adverse impact that the container house^[39] would otherwise have on the amenity of their property and is ‘well considered and neighbourly’.^[40]
85. [85]
    They say further that they did not want the expense and effort of planting and maintaining the bamboo. It was forced on them by the construction of the container house.^[41] Mr Ortlipp and Ms Burgess bought the house aware of its impact on their property and were, or should have been, aware of the purpose of the planting of the bamboo and its likely impact on them when the bamboo matured.
86. [86]
    I accept that the container house does overlook Mr Bowyer and Ms Whittle’s property. I also accept that if, and when, they construct their new three storey home, the view that Mr Ortlipp and Ms Burgess now seek to protect will be significantly obstructed. However, that does not in itself justify the degree of offence they have taken to the construction of the container house. It is their evidence that if, and when, they develop their property they will ‘take advantage of the maximum allowable building envelope’.^[42] That is precisely what the Millers did when they constructed the container house.
87. [87]
    The significance of the adverse impact of the container house on their privacy is lessened by the fact that neither Mr Bowyer or Ms Whittle reside, have ever resided, and have no future intention of residing in the house on their property.
88. [88]
    Any discomfort caused to them by the overbearing nature of the container house is experienced by them on their infrequent visits to the backyard of the property, primarily to maintain the bamboo which they have planted.
89. [89]
    There is no evidence from any resident of their property, past or present, of any discomfort caused to them by the container house.
90. [90]
    I do not accept that the Tribunal should take into account the impact of the exercise of its discretion to remedy would have on any proposed future re-development of Mr Bowyer and Ms Whittle’s property. The impact is, in any event, impossible to assess until after the re-development, or at the very least until the plans and specifications of the re-development have been finalised.
91. [91]
    Mr Bowyer and Ms Whittle say that the bulk and siting of the container house have had an adverse impact on the value of their property^[43] and its rental income.^[44] Mr Ortlipp and Ms Burgess have also complained that the bamboo has adversely affected the value of their property.^[45]
92. [92]
    Neither Mr Duffield^[46] for Mr Bowyer and Ms Whittle, or Mr May and Mr Robson^[47] for Mr Ortlipp and Ms Burgess, quantify that impact and so it is difficult to see what weight, if any, the Tribunal should give to it. Neither party has any intention to sell.
93. [93]
    No doubt the value of the property may be affected by the nature and condition of adjoining properties, but the mere assertion of an adverse impact does not, in my view, significantly influence whether or not the Tribunal should exercise its discretion to remedy.
94. [94]
    I am also not persuaded that the loss of rent is a significant factor. It is Mr Bowyer and Ms Whittle’s evidence that their tenants vacated the property in March 2013, before the construction of the container house.^[48] Construction of the container house took place from April to July 2013. The bamboo was planted in late June 2013.
95. [95]
    Mr Bowyer and Ms Whittle withdrew the property from the rental market on 18 June 2013.^[49] This was done to permit them access to the property to establish and maintain their plants.^[50] From August 2013 to October 2013 they rented to friends at a reduced rate in exchange for access to care for their plants.^[51] The property was re-tenanted in January 2014.^[52] Since June 2015 they have maintained the rent at below market rent in exchange for access to maintain their plants.
96. [96]
    Even if it is accepted that the presence of the container house screened by the bamboo affects the rentability or return of the property, the only evidence is that which comes from Mr Bowyer and Ms Whittle, and on their evidence it is clear that the planting and the maintenance by them substantially contributes to any rental loss.
97. [97]
    It is submitted by Mr Bowyer and Ms Whittle that Mr Ortlipp and Ms Burgess assumed ‘the ordinary and natural consequences’ of ‘large existing plants’ on an adjoining property.^[53] They rely on Tighe v Schak & Anor (Tighe).^[54]
98. [98]
    I do not accept that submission. In Tighe, the applicant’s complaint was of leaf litter from trees. As noted earlier, leaf litter itself generally does not justify an order by the Tribunal to remedy. The learned Member in that case found that the applicant ‘assumes the ordinary and natural consequences of their litter’ (emphasis added).^[55]
99. [99]
    The trees in Tighe were described as very large trees between 50 and 70 years old at the time the applicant took possession. That is not the case here. I have found that at possession the bamboo was visible from the second level of the container house with the tips of some culms at a height calculated by Mr Chenoweth at between 5 and 6m providing little impediment to views and sunlight.
100. [100]
     That is clearly not the case now. I do not accept that Mr Ortlipp and Ms Burgess could be reasonably expected to anticipate the scale and extent of the mature bamboo plants.
101. [101]
     Accordingly, in all the circumstances I believe it appropriate to make a tree order.

Remedy

102. [102]
     Neither of the expert’s reports, or the joint expert report, is of assistance in the event the Tribunal determines that a tree order is justified.
103. [103]
     In evidence, in response to the Tribunal’s request for a recommendation, Mr Curtis suggested that all bamboo be pruned to a height of 3m. Mr Chenoweth suggested ‘managing the height’ of the Timor Black species at each end to protect the river views.
104. [104]
     Again, in response to a question from the Tribunal during evidence, Mr Ortlipp suggested, like Mr Curtis, that the bamboo be trimmed to a height of 3m, which was effectively, according to him, the level of the floor of the second level of the container house. If trimmed to a height of 4.5m the bamboo would be level with the height of the transom on the second level permitting standing views only.
105. [105]
     Mr Bowyer in his evidence declined the opportunity to offer an opinion, save to say that any work should be carried out at the cost of Mr Ortlipp and Ms Burgess and should be sensitive to quiet enjoyment of their tenants.
106. [106]
     In their joint submissions, Mr Bowyer and Ms Whittle say that trimming or pruning to a height of 3m:

     1. Would give Mr Ortlipp and Ms Burgess ‘significantly better views than they had at possession’;^[56]
     2. Would destroy the ‘unique form’ of the bamboo^[57] and create a hedge which will thicken over time;^[58] and
     3. Is pointless as the advanced palms will grow to a height of 8 to 10m obstructing the northern view.
107. [107]
     It is not possible to restore the exact view that existed at the date of possession because it incorporated the immature bamboo culms.
108. [108]
     I have found that the immature bamboo culms did not cause a significant impediment to the views available to Mr Ortlipp and Ms Burgess at the date of possession. I also accept Mr Bower and Ms Whittle’s submission, supported by Mr Chenoweth’s oral evidence, that pruning the bamboo will create a denser hedge. Any pruning to a height above 3m will result in a hedge screen which certainly did not exist at the date of possession.
109. [109]
     On Mr Chenoweth’s evidence, the bamboo will continue to shoot new culms which will grow, on his estimate, approximately 2.7 to 3m per year. If the bamboo was pruned every 2 years, the tips of the immature culms could be expected to be visible as they were at the time of possession from the second level of the container house.
110. [110]
     I do not accept that the presence of the mature palm trees makes pruning pointless. Mr Ortlipp and Ms Burgess have taken no objection, presently anyway, to the palm trees. That may or may not be a matter for another day.
111. [111]
     Mr Bowyer and Ms Whittle, citing Rice v Livingstone,^[59] submit that each of the bamboo plants must be considered separately to determine if, or how, it interferes with the view.
112. [112]
     Mr Chenoweth in suggesting a pruning of the Timor Black species is the only consideration given by any witness to the selective pruning or management of the bamboo generally, but as I have found that is on the incorrect assumption that the view is confined to the river views available from the deck and laundry.
113. [113]
     Mr Bowyer or Ms Whittle have not, in their evidence or submissions, given any option for a solution which involved selective pruning. While they insist that the plants have not been planted as a hedge, that is clearly the effect of them from the second level of the container house. I accept that planting a greater number of plants or different species the result could have been worse for the occupants of the container house, but the plants still constitute as they were designed to, a screen between the two houses.
114. [114]
     Further, selective pruning does not seem appropriate given the speed at which the bamboo will continue to shoot and grow.
115. [115]
     Accordingly I order:

     1. Mr Bowyer and Ms Whittle arrange for the following works to be carried out at their expense:
        1. (a)
           Reduce the height of each of the bamboo plants on their property to 3m in height from ground level at the base of the plant;
        2. (b)
           Maintain the bamboo plants at that height.

     2. The work required by Order 1(a) is to be carried out by 31 August 2017.
     3. The work required by Order 1(b) is to be carried out every two years commencing January 2020.