COMMISSIONER: William and Roslyn Akhurst, the applicants, who occupied their Forster property in 1987, have for many years enjoyed views of One Mile Beach, Cape Hawke, and the ocean from their living area, kitchen, and rear balcony, across the top of trees in neighbouring properties. In the recent past, trees in an adjacent property have grown to obstruct these views.
The property of the respondent, Claire Fletcher, is located east of and at a lower level than the applicants' land and the trees provide screening and contribute to the respondent's garden. In the absence of the trees, the applicants would be exposed on their rear balcony, from which they overlook the respondent's house and rear yard. The parties access their properties from different streets and the common boundary is where the eastern corner of the applicants' property meets the western corner of the respondent's land. The parties' rear boundaries are oriented from north-east to south-west.
Mr Akhurst, a solicitor, wrote letters of demand to Ms Fletcher on 27 January 2023, 6 February 2023, 10 February 2023, and 20 February 2023, which proposed pruning and maintenance of the respondent's trees at a height of 2.5 metres (m) to relieve view obstruction, at the applicants' cost. Mr Akhurst also noted provisions in the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) "for a relevant application to the Land and Environment Court", and said, "We wish to avoid this if possible".
Regrettably, all these letters were sent to the wrong address, an empty dwelling across the road from Ms Fletcher, and to a disused email. Therefore, the initial notification of the proposed tree pruning was upon service of the application, pursuant to s 14B of Pt 2A of the Trees Act, on 23 March 2023, followed by an amended application with the respondent's correct address, on 31 March 2023. At this time, Ms Fletcher was recovering in hospital from surgery, and the application was served on the respondent's daughter, Raelene.
The applicants proposed the Court make the following (summarised) orders:
1. Prune all trees blocking the applicants' view to no higher than 2.5 m above natural ground level.
2. Maintain all trees blocking the applicants' view at a height no greater than 2.5 m above natural ground level, at all times.
3. Respondent shall allow the applicants' chosen qualified arborists with appropriate insurance to access her property for completion of works in Orders (1) and (2).
The respondent's son, Nathan, a greenkeeper, wrote to the Akhurst's on 28 April 2023, and advised the applicants that they had used incorrect addresses for letters and emails and that he would be handling this matter on behalf of his ill mother. Nathan also noted that details about the trees on the site diagram in the Tree Dispute Claim Details (Form G) were incorrect.
The applicants submitted that the hedge comprised three Elaeocarpus reticulatus (Blueberry Ash) (T1 - T3), two Callistemon sp. (Bottlebrush ) (T4 - T5), and one Dracaena marginata (Dracaena) (T6), all of which they claimed were planted in about 2017. Nathan claimed there were two Blueberry Ash and one Bottlebrush tree, along with the Dracaena, and added that he had planted the Dracaena in 1994 and his father had planted the Blueberry Ash trees in about 1996.
The respondent proposed the following (summarised) alternative orders:
1. Dracaena (T6) may be removed or pruned to 2.5 m;
2. Bottlebrush (T5) and Blueberry Ash (T2) may be pruned to the same height as an Avocado tree located in applicants' east side neighbours' yard;
3. Blueberry Ash (T1) may be pruned to above the tree's second fork;
4. Pruning works to be carried out by an arborist of the respondent's choosing, with cost of works borne by the applicants.
[2]
The onsite hearing
The hearing commenced with an inspection of Mrs Fletcher's rear yard, where the trees grew in a garden bed along the rear boundary. Mr Akhurst represented the applicants, while Ms Fletcher's daughter, Cassandra, acted as Agent for the respondent.
The respondent's back garden was heavily planted with a wide range of tree, palm, and shrub species in beds around the back and sides, and in a bed parallel to the back boundary, but close to the dwelling. The applicants' balcony was concealed above the yard's western corner by one vigorous mature Blueberry Ash, rather than the two noted by Nathan. The residual Blueberry Ash was identified as T1.
The Court moved to the Akhurst's dwelling, where I inspected views from north-east and south-east facing windows of the living room, and from the adjacent rear balcony, which is considered part of a dwelling for the purposes of the Trees Act. In the absence of the trees, the applicants' views of water and undulating landscape from their balcony spanned an arc of about 100% from the east, north-east, through east, to south, south-east.
While the respondent offered alternative orders that provided for reinstatement of most of the applicants' views, Nathan Fletcher claimed that T1 has great sentimental value for his mother and he opposed pruning T1 to 2.5 m, as proposed by the applicants, because T1 "would not survive" such harsh pruning. He also noted that T1 is an "integral part of the garden design and attracts abundant birdlife". Cassandra said T1 provides privacy, heat absorption, and shade, which was particularly important as her mother was sun sensitive following chemotherapy.
[3]
Jurisdictional requirements - Part 2A
Part 2A of the Trees Act provides a limited jurisdiction and does not assume one 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 against the interests of the applicant.
Section 14A(1) states:
(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).
Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this Part applies. The trees must be situated on adjoining land.
Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.
Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
Section 14E addresses matters of which Court must be satisfied before making an order, as follows:
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
Of significance is s 14E(2) of the Trees Act, which states:
(2) The Court must not make an order under this Part unless it is satisfied:
(a) the trees concerned:
(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or
(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and
(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.
If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.
[4]
Do the trees form a hedge?
The first test at s 14A(1) of the Trees Act, as detailed above at [14], is whether the trees are a hedge for the purpose of the Act.
The inspection of trees along the respondent's rear boundary revealed trees of different species to those nominated by the applicants, which they explained by the lack of access or visibility into the respondent's garden. North-east of the corner Blueberry Ash was a 'Pittosporum-like tree' with which I was not familiar, but it looked similar to local roadside species, and was possibly self-sown. The third tree was a Bottlebrush, next to which was an Oleander, and then a large shrub with delicate blue campanulate flowers. In the middle of the bed were lower Grevillea shrubs and then the Dracaena, which was about 8 m from the Blueberry Ash.
Given this reality, and no objection from the respondent, I granted the applicants' leave to redefine 'the hedge', which they now said comprised the Blueberry Ash (T1), the 'Pittosporum-like tree' (T2), the Bottlebrush (T3), the Dracaena (T4), and a Bangalow palm in the garden adjacent to the house (T4).
In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), Preston CJ provides commentary in an unsuccessful 'hedge' appeal under Pt 2A of the Trees Act. At [35]-[38], his Honour, discussing the language of s 14A(1)(a), says:
"35 Thirdly, although the Commissioner accepted that there was no requirement for all trees in a hedge to be planted at the same time, in the present situation, he found:
"the Turpentine appeared first, as a solitary tree, and a group of very different trees was then planted along the boundary up to this tree. It was certainly not a hedge when it grew here and has not become part of one. Its age, size, form and appearance all make it a separate tree, and distinctly so (para 30)."
36 The Johnsons submit that the Commissioner erred in concluding that a hedge cannot include a separate or distinctively individual tree within a group of trees. They submit that 'the appropriate question to be determined as to whether any group of trees is planted so as to form a hedge under s 14A is not age, size, form, appearance or the uniformity of remaining elements", as determined by the Commissioner "but simply whether the two or more trees are sufficiently close and tall enough" (para 47 of the appellants' outline of submissions). They submit that, in this case, the Turpentine and palms were sufficiently close and tall enough to be a hedge.
37 I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, "so as to form a hedge", for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be "trees that are planted ... so as to form a hedge". As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.
38 If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees."
I am satisfied that similar circumstances were present here. Upon prompting Mr Akhurst to explain the basis for his claim that the trees 'formed a hedge' for the purpose of the Trees Act, he said the "normal meaning" of a hedge includes trees of the same species, but under the Trees Act, trees that form a hedge may be of different species.
Though trees do not need to be the same species, nor necessarily be planted at the same time, they must be planted with an intention to form a hedge to engage the jurisdiction of Pt 2A of the Trees Act. Cassandra Fletcher submitted that the trees and shrubs were often picked up from nurseries at a whim and were planted by her parents at different times as individual specimens. During the initial inspection of the trees, Cassandra volunteered that her parents "did not plant the trees with the intention of forming a hedge".
Mr Akhurst failed to consider key jurisdictional requirements of the Trees Act. Quoting from [37] of Johnson, Mr Akhurst's:
"… submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be "trees that are planted ... so as to form a hedge". As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. …"
It is likely that the two Blueberry Ash trees said to be planted by Mr Fletcher in 1996 were planted so as to form a hedge. As only one Blueberry Ash tree (T1) remains, however, T1 is no longer a hedge with the now absent, second Blueberry Ash. Given that both Nathan and the applicants appeared unaware of the existence of T2 prior to the hearing, it may have self-seeded. T3 had been planted, but, along with T2, was narrow and relatively small. T3 appeared younger than T1 and T2 appeared even younger than T3.
Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), at [45], says:
"... 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 to be a hedge."
This hedge description has applied in many decisions under the Trees Act and is relevant to consider here. The Dracaena, T4, planted by Nathan in 1994, was located about 8 m from T1 and about 6 m from T3. Between T3 and T4 are perhaps 10 small trees and shrubs of various species, and the form, foliage, and appearance of T4 was entirely different from any of the other four nominated trees. Amongst T1 - T5, T4 was the first tree planted and T4 displayed no connection to the other trees through similarity of appearance, or spatial proximity. Therefore, I am not satisfied T4 is a member of a hedge for the purpose of the Trees Act.
For similar reasons, T5 is not a member of a hedge for the purpose of the Trees Act. T1 - T3 are aligned along the respondent's back boundary, while T5 is in a separate garden bed near the dwelling to the east. A linear connection between the trees requires a deviation of about 90 degrees at T3 from the line formed by T1 - T3, to join with T5. Again, there are trees close to a straight line between T3 and T5 that are not nominated hedge members, and as with T4, T5 displayed no connection to the other nominated 'hedge' trees through similarity of appearance, or spatial proximity. Considering the first sentence of [45] of Wisdom, neither T4 nor T5 conform to the "regularity and arrangement, in a linear fashion", required to be considered hedge members for the purpose of the Trees Act. The inclusion of T4 and T5 as members of a hedge was based entirely on their role in blocking the applicants' views. Other than this, the applicants submitted no basis of connection between T1 - T3 and either T4 or T5, or between T4 and T5.
Limitations of s 14A(1)(a) of the Trees Act are further discussed by his Honour at [39] - [43] of Johnson:
"[39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge.
[40] Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.
[41] But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge.
[42] The factors considered by the Commissioner in determining whether the Turpentine was planted so as to form a hedge with the palms (in paras 28-30) were not factors that were excluded as irrelevant by s 14A(1)(a) of the Trees Act.
[43] Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
As T4 and T5 have been excluded as hedge members, focus turns to T1 - T3. With respect to Johnson, at [41], each of the alleged hedge trees are of a different genus and species, and are dissimilar in appearance, form, structure, and foliage. The Blueberry Ash (T1) has a broad, dense canopy and dark leaves, while the Bottle Brush (T3) is leggy, wispy and erect with light green foliage. The narrow canopy of the unidentified 'Pittosporum-like tree' (T2) had bronze-green lanceolate foliage, squeezed between T1 and T3. The differences in form and foliage between the three trees are distinctive, not subtle, and this dissimilarity between the trees makes them appear incompatible when grown close together.
Satisfaction of the intent in forming "planted so as to form a hedge" in s 14A(1)(a) of the Trees Act required that at least two trees amongst T1 - T3 were planted initially and at the same time as it is axiomatic that one tree cannot constitute a hedge. Though tree appearance is an inexact means for estimation of age, based on the arboricultural expertise that I bring to the Court, T1 appeared to be distinctly older than T2 or T3, and thus had been in situ for longer than T2 or T3.
In Johnson, Preston CJ determined that a Turpentine tree could not have been planted so as to form a hedge with a row of palms because it was planted 45 - 55 years before the palms, and, at [43], his Honour said;
"If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
In this case, as T1 had been in situ for longer than T2 or T3, as with the Turpentine tree in [43] of Johnson, T1 "cannot later acquire the status of being planted so as to form a hedge" by T2 and T3 being planted to form a hedge in proximity to T1. In Hickey v Inman [2022] NSWLEC 1491 (Hickey), at [23], the Court noted;
"While orders may be made for severe obstruction of views as a consequence of a hedge under s 14A of the Trees Act, no such remedy is available under the Trees Act for severe obstruction of views as a consequence of individual amenity trees. Therefore, distinguishing between a hedge and amenity trees is critical."
In this case, as T1 is not a member of a hedge with T2 and T3, it is an individual amenity tree.
Considering the remaining trees, T2 and T3, no evidence was submitted as to these two trees being planted together, or, given that T2 only became known and relevant at the hearing because of its role blocking the applicants' views, whether T2 was planted at all. As Nathan Fletcher also failed to mention T2, I opine that it was probably self-seeded. Regardless, however, whether it was planted, I am satisfied that T2, was distinctly younger than T3, which was suppressed and had been pruned on various past occasions. Therefore, T2 and T3 did not form a hedge for the purposes of the Trees Act.
Even if s 14A(1) of the Trees Act had been satisfied for trees T2 and T3, given that about 90% of the applicants' view obstruction was caused by T1, the relatively small size and thus minor obstructive impact of T2 and T3, would result in a view obstruction determination for T2 and T3 that was far less than severe.
In Wein v Reeves [2022] NSWLEC 1019, where two trees were claimed to form a hedge, at [15], I noted;
"Hedges may be comprised of two trees, but when representations are made that only two trees comprise a hedge, there is a distinct onus on the applicant to prove that the relationship between the trees satisfies the requirements of the Trees Act. Typically, this would involve trees of similar species and form, planted at the same time, relatively close together."
Considering the applicants' failure to address vital questions regarding the planting of the alleged hedge trees, and the marked diversity and inconsistency amongst trees and shrubs in the respondent's garden, I was more persuaded by Cassandra Fletcher's submission that her parents occasionally bought trees and shrubs, which they planted in garden beds around and near the edges of the yard to optimise central lawn space.
Consequently, s 14A(1) of the Trees Act is not satisfied for the nominated 'hedge' trees, and the Court therefore has no powers to make orders. Thus, there is no need to consider the applicants' effort to reach agreement, at s 14E(1)(a), the assessment of obstruction of views from the applicants', dwelling as a consequence of any or all of the trees in the hedge, at s 14E(2)(a)(ii), nor to balance the nature and extent of obstruction against considerations amongst s 14F that augur against intervention, at s 14E(2)(b) of the Trees Act.
[5]
Discretionary considerations - s 14F
Had the jurisdiction been engaged, however, and determination of the balance between the parties' interests in s 14E(2)(b) had been required, relevant matters in s 14F would be considered. The privacy and protection from sun and wind provided by the trees, the trees' contribution to ecosystem services and biodiversity, and the likely negative impact on the health and longevity of the trees, particularly the Blueberry Ash, resulting from the heavy pruning sought by the applicants, were all important considerations noted by Cassandra and Nathan Fletcher.
[6]
Conclusion
The onus is on the applicants to prove their case in accordance with the jurisdictional requirements and limitations of Pt 2A of the Trees Act. The applicants claimed that five trees formed a hedge for the purposes of the Trees Act, but as Mr Akhurst appeared unfamiliar with the requirements of the Trees Act, regardless of my prompting, the applicants' submissions failed to address key requirements.
In McDonald v Sheehan [2022] NSWLEC 1159, at [7], Galwey AC summarised requirements established in Johnson for satisfaction of s 14A(1)(a) of the Trees Act, as follows:
"… Firstly, the Court must be satisfied that the trees were intentionally planted, rather than growing from seed spread by wind or birds or the like. Secondly, the intentions at the time of planting must include establishing a hedge. And thirdly, the trees must still form a hedge in the present."
After T4 and T5 were excluded as members of a hedge due to dissimilarity of appearance and marked spatial separation from T1 - T3, satisfaction of s 14A(1)(a) of the Trees Act required someone to have planted T2 and/ or T3 along with T1, with the intention of forming a hedge with T1. The applicants submitted no evidence in support of this scenario, and thus failed to persuade me that T2 and/ or T3 were planted so as to form a hedge with T1.
Though T1 may have been planted with a second Blueberry Ash tree as a hedge, as this second Blueberry Ash tree was now absent, the requirement that "the trees must still form a hedge in the present" is not met, and therefore T1 is an individual amenity tree, for which the Trees Act provides no relief from view obstruction.
The failure of the applicants' alleged hedge to satisfy the requirements s 14A(1) of the Trees Act must result in the refusal of the application as the Court has no powers to make orders. Nonetheless, the pruning proposed by Nathan Fletcher in the respondent's alternative orders, above at [8], would lead to a marked reduction of the applicants' view obstruction, without significantly compromising the trees' benefits to the respondent. Opportunity may therefore exist for further negotiations between the parties.
[7]
Orders
As a consequence of the foregoing, the orders of the Court are:
1. The application is refused.
[8]
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: 15 September 2023