McLaren v Lewis [2011] NSWLEC 1170

Land and Environment Court New South Wales

Medium Neutral Citation: McLaren v Lewis [2011] NSWLEC 1170 Hearing dates: 13 April 2011 Decision date: 28 April 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; nature of a hedge; severe obstruction caused by trees not subject to the Act Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012 Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Mrs S McLaren (Applicant) Mr G Lewis (Respondent) Representation: Mrs S McLaren (Applicant in person) Mr G Lewis (Respondent in person) File Number(s): 20007 of 2011

Judgment 1COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Seaview Street Bonny Hills against the owner of trees growing in an adjoining property in Third Avenue Bonny Hills. 2The applicant is seeking orders for the pruning of 12 trees to approximately 3.5 m above ground level (on the respondent's property) in order to regain views of the nearby coastline from Rainbow Beach to Lighthouse Beach near Port Macquarie. The applicant contends that she had panoramic views when she purchased the property in 1999.

Relevant background 3All trees are located in the rear garden of the respondent's property. The applicant's property adjoins to the south but in a more elevated position. 4It appears that the respondent's mother planted the trees in order to provide privacy to bedrooms on the upper storey of the dwelling. Correspondence between the applicant and the respondent's mother, his stepfather and later himself were tendered by the respondent. 5Some of this correspondence goes back to 2000. A letter dated 22 April 2002 indicates that the applicant sought the pruning of the trees back then on the basis of obstruction of sunlight, loss of views, loss of property value, overhanging of her property and being a hazard. The letter states that back in February 2000 the applicant had been willing to share the cost of the pruning or, "for the sake of our personal safety and property" the full cost. 6In the applicant states that some of the trees were pruned in 2007. A photograph on p6 of exhibit B, taken on 10 January 2007 from the balcony in front of V4 shows lopping of some trees (notably trees 7 and 11) as well as the view, the relationship of the respondent's roofline to the view, as well as other rooflines and vegetation between the respondent's property and the water views. 7In a letter to the respondent's stepfather dated 11 June 2010 the applicant advised that with the passing of the amendment to the Tree Act... It is now law, that you cannot grow high shrubs/trees'' [sic] /hedges that obstruct sunlight or views. Two or more trees which rise above the height of at least 2.5 metres above ground level." [sic]...... Would you please consider again, my request to trim ALL the trees and shrubs in your backyard that exceed a height of 2.5 metres....otherwise I will take this matter to the Land and Environment Court... 8On 6 July 2010 the respondent wrote to the applicant and advised that he was unwilling to lose privacy afforded by the trees. He states My original offer was for you to have the trees trimmed in a straight line from your upper balcony handrail to the gutter line of 7 Third Ave. This is where I judged them to have been trimmed before. When you objected strongly to that I was prepared to move the line to the top of the upper storey windows. I propose that the largest tree that is somewhat to the left of your view be permanently removed [tree 7] , but I would like to see the one to the left of that again [probably tree 2] be left as it is both smaller and looks as if it has reached the limit of its growth. Removal of this tree will reduce your ongoing costs considerably as I think most of the trees on the fence line are near the limit of their growth. 9The subsequent correspondence shows that the parties were unable to reach an agreement as to where trees should be cut and who should pay. 10The respondent's property is currently tenanted as the respondent lives interstate. At the site inspection the location of the trees was verified and the diagram in the application amended. 11In March 2011, the applicant engaged Richard Breheny, Consulting Arborist, to undertake a tree evaluation and prepare a report. While the citing of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct is not in the usual form, the report was accepted into evidence. The following table and the location diagram are taken from his report. Note that the heights of the trees in the table are those measured in March. At the time of the hearing, the respondent's tenants had pruned some of the trees and they had removed one tree without the respondent's knowledge. No. Species Height (m) 1 Backhousia citriodora 5.6 (Lemon Myrtle) Callistemon sp. 2 (Bottlebrush) 6.6 Recently pruned by tenants 3 Acmena sp 5.6 (Lillypilly) 4 Acmena sp 5.6 (Lillypilly) 5 Callistemon sp. 7.4 (Bottlebrush) 6 Camellia sasanqua 3.5 (Camellia) 7 Citharexylum spinosum 8.1 (Fiddlewood) 8 Syzygium australe 5.9 (Brush Cherry) 9 Callistemon sp. 6.4 (Bottlebrush) Stenocarpus sinuatus 10 (Queensland Firewheel) 4.1 Recently removed by tenants 11 Xanthostemon chrysanthus 7.2 (Golden Penda) 12 Callistemon sp. 5.7 (Bottlebrush)

12The Breheny report indicates that all of the trees, with the exception of the Camellia and the Golden Penda, have been previously lopped to varying heights.

The views 13The viewing points are along the north-facing side of the applicant's dwelling. From east to west the viewing points are: V1 the kitchen, V 2 an ironing station opposite a glass door to a deck, V3 a window in the lounge room, V4 a glass sliding door in the lounge room, V6 bedroom window and V7 outdoor dining table on a deck. 14It was clear from the site inspection that the majority of the views to the north are obscured by some of the trees in the respondent's property, in particular the Fiddlewood (tree 7) and the Golden Penda (tree 11). There are some views to the north-east from the kitchen (V1) to Lighthouse Beach and Tacking Point Lighthouse near Port Macquarie but the nearby shoreline is obstructed. Rainbow Beach to the north-northwest can be seen, in part, from standing positions from V4, V5 and V6. 15A mature Metrosideros sp. is growing near the rear side fence of the property to the west of the respondent's. This is partly in the applicant's view line to Rainbow Beach.

The assessment framework 16There are a number of key jurisdictional tests that must be satisfied before the Court can make an order under part 2A for any interference with a tree. Section 14 A(1) provides: (1) This Part applies only to 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) 17Only if any or all of the trees meet the test in s 14A, the Court must then consider the tests in s 14E(2)(a)(ii). This states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land, 18That is - do the trees impact on views from the applicant's property? If there is an impact on views, is it severe? 19If the impact on views is severe, the Court must then consider s 14E(2)(b). This states: (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. 20In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D, but only if the jurisdictional tests in s 14A(1) and s 14E(2)(a)(ii) are satisfied.

Findings 21With respect to the tests in s 14A, the applicant considers that the intermingling of the canopies of the trees can and should be interpreted as a 'hedge'. The respondent considers that this would imply that a forest is a 'hedge'. 22The applicant's argument is similar to that submitted by the solicitor for the applicant in the matter of Wisdom v Payn [2011] NSWLEC 1012 at para 44 of the judgment. 44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be one which is taken into account rather than one that is based on a measurement focussed assessment of location. Indeed, he put the proposition to us, as we understood it, at that trees that were planted in a copse or forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings. 23I concur with the respondent's position and with the finding by Moore SC and Hewett AC in Wisdom v Payn at [45] in response to the submission that a copse of trees can be a hedge for the purpose of the Act. 45 We reject this proposition. 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. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived as a hedge. 24In this matter, and putting the applicant's case at its highest, I consider that the only trees capable of satisfying s 14A are those along the rear boundary fence of the respondent's property, that is trees 3, 4, 5 6, 8 and 9. While I accept that all of the trees subject to the application are planted and rise to a height of at least 2.5m above ground, it is only these trees that could be construed as "forming a hedge". 25In my view, apart from a linear relationship, the trees should also be relatively close to one another. The proximity will be somewhat dependent on the scale of the landscape, the species of the tree and the intent of the planting. This refinement is made in consideration of para 46 of Wisdom v Payn . 46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modesty old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly a single tree that is obviously separate and distinctly so...cannot be so regarded. 26In this paragraph, the Senior Commissioner and Acting Commissioner use the example of 'modestly old firs along a driveway'. Whilst this is clearly an example of what might be considered a hedge for the purpose of the Act, it hints at a largish block of land and a more formal planting. In typically smallish backyards of dwellings constructed over the past few decades I consider it would be unreasonable to construe that any 2 trees, particularly of different species, planted any more than about 3 m apart is a 'hedge' even though any 2 trees will be in a linear arrangement with one another. 27The diagram reproduced from the Breheny report shows considerable distances between trees 1, 2, 7, 11 and 12. Tree 12 is clearly by itself. On site I estimated a distance of 5 m between trees 1 and 2, 5 m between 2 and 7 and 5 m between 11 and 7. Tree 2 is approximately 3m from tree 3. While the diagram shows a somewhat linear relationship between trees 7, 10 and 11, tree 10 has been removed. I agree with the respondent that the impression one gets from viewing the trees in the middle of the yard is not one that would be perceived as a hedge. 28Therefore the application of Part 2A of the Act can only apply to trees 3, 4, 5 6, 8 and 9. 29Moving to the tests in s 14E(2)(a)(ii) it is clear that there is a severe obstruction of views to the north from a number of viewing points on the applicant's property. However, this obstruction is principally due to the canopies of trees 7 and 11, that is, the Fiddlewood and the Golden Penda. A photograph on p 10 of the Breheny report illustrates approximately how high the trees project above the respondent's roofline when viewed from the deck outside V2. The Fiddlewood is the dominant tree and appears to extend 2-3 m above the roofline. 30Whilst the removal or reduction of the Fiddlewood would improve the applicant's views to the north, the Court has no jurisdiction to make any orders with respect to this tree, the Golden Penda or trees 1, 2 and 12 as, in my view, they do not meet the tests in s 14A. 31In considering what, if any orders should be made with respect to trees 3, 4, 5 6, 8 and 9, I am not satisfied that trees 3, 4 and 6 severely obstruct any view from the applicant's property. Tree 6 is only about 3.5 m tall and well below the roofline of the respondent's dwelling. Trees 3 and 4 may slightly obscure part of the view to the north-northwest between the dwellings at 5 and 7 Third Avenue but part of that view corridor is also limited by the Metrosideros growing at the rear of 5 Third Avenue. No application has been made with respect to this tree. 32In the absence of trees 7 and 11, trees 5, 8 and 9 may have some impact on views. However trees 7 and 11 do exist and as stated in [27-30] the Court has no jurisdiction to order any pruning of those trees. The consequence of that finding is that if any or all of trees 5, 8 and 9 were pruned to a height of 3.5m as the applicant requests the view would be of trees 7 and 11 and not the view of the water and coastline the applicant seeks. A view of those trees is clearly not what the applicant sought in making this application to the Court. 33As a consequence of these findings there is no necessity to consider the matters under s 14F and then to consider the balancing inherent in s 14E(2)(b). 34However, before concluding it is worth addressing the applicant's interpretation of the Trees Act as amended in August 2010. The Act does not place a prohibition on the growing of high shrubs, trees or hedges that may at some stage obstruct sunlight or views. The height of 2.5 m is the height threshold at which the jurisdiction is, in part, enlivened. The Act does not specify any height to which all plants must be maintained. The amendment, as provided in s 14B, simply enables an owner or occupier of land to apply to the Court to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling and or of any view from a dwelling. The dwelling must be situated on an applicant's land and the trees must be trees to which Part 2A of the Act applies, that is as specified in s 14A, and be on adjoining land. Section 14D(1) enables the Court to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling and or a view from a dwelling but only if the jurisdiction is enlivened. Any orders so made may place an obligation on the owner of that hedge. 35As indicated in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change it is possible for a fresh application to be made.

Orders 36As a consequence of the forgoing, the Orders of the Court are: (1)The application is dismissed. (2)The exhibits are retained. J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2011