Arnold v Persson

Land and Environment Court (NSW)|2021-11-29

Background to the application

Acting Commissioner: Robert Arnold (the Applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders relating to six palm trees on an adjoining property in Vaucluse belonging to his neighbours, Patricia and Jeffrey Persson (the Respondents), on the basis that the palms obstruct his views. He seeks an order that the six palms be removed and replaced at the Applicant's expense; or failing that, an order that four of the palms be removed and replaced at the Applicant's cost; or failing that, an order that all six palms be pruned every six months.
The hearing in these proceedings took place via audio-visual means. Mr Tsang represented the Applicant; Mrs Persson represented herself and her husband. The application lists the second respondent as Patricia McIntosh, but during the hearing she clarified that she uses the surname Persson, so that is the name used throughout this judgment.

The palms do not form a hedge

The jurisdiction granted by Pt 2A of the Trees Act is limited at s 14A: 14A Application of Part (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). (2) Despite section 4, this Part does not apply to trees situated on Crown land.
According to arborist Kyle Hill, who provided a report on 7 October 2021 at the request of Mr Arnold, the six palms are 5.78-6.51 metres tall (Exhibit C, p 4). Mr Persson, in his affidavit of 13 November 2021, stated that he planted nine palms in 1992, six of them adjacent to the common boundary shared with the Arnolds (Exhibit 1, paras 5, 6). The palms therefore meet two of the three requirements written into s 14A(1); they were planted and they are more than 2.5 metres tall.
In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Chief Judge Preston expanded on the phrase "planted so as to form a hedge". Preston CJ explained that the trees must have been planted with the intention to form a hedge, and they must still form a hedge in the present.
The six palms in these proceedings include three Bangalow palms (Archontophoenix cunninghamiana, trees T1-T3) and three Kentia palms (Howea forsteriana, T4-T6). Mr Persson did not state in his affidavit that he intended to form a hedge when he planted the palms. In fact, he stated at para 6 that "the trees were loosely planted with a 1.5 metre gap between the trees." As Mr Arnold shows in his drawn plan on p 2 of his claim details form, the palms were not planted in a straight line. Mr Arnold has not demonstrated that the palms were planted so as to form a hedge. Of course, a respondent's lack of admission as to their intention at the time of planting does not disprove an intention to plant a hedge. Nor does an applicant's failure to demonstrate the same intention prove a lack of that intention. Nevertheless, on the balance of probabilities, there must be enough about the circumstances that would satisfy this Court, with its experience hearing similar matters over many years, that someone intended to establish a hedge when planting the trees. It cannot be merely convenient to find this intention so as to make orders that might otherwise seem reasonable.
The legislative drafters chose their words carefully to restrict the reach of Pt 2A to specific circumstances. Background material such as the Department of Justice and Attorney General's Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009) ("the 2009 Review") can give insight into those circumstances. Recommendation 9 of the 2009 Review included inter alia the recommendation that the jurisdiction of Pt 2A "…be strictly limited, with applications restricted to hedges which are both high and give the effect of a solid barrier".
The legislative drafters of the Trees Act did not include a definition of 'hedge'. Relying on s 34(3)(a) of the Interpretation Act 1987, I refer to the 2009 Review here when determining whether the palms are planted so as to form a hedge. When Pt 2A of the Trees Act was younger (the Trees Act was amended in 2010 to include Pt 2A) the Court sometimes made orders for palms. For instance, in Johnson v Angus [2012] NSWLEC 1207, I gave orders to prune and remove some palms in a long row of palms. Mr Tsang also referred to examples, such as Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108, where Commissioner Fakes found at [29] that Pt 2A of the Trees Act applied to a planting of palms. More recently, however, I have found that palms are less likely to form a hedge: see Condon v Scott [2021] NSWLEC 1160 at [9]-[17].
The Merriam Webster dictionary's definition of 'hedge' includes: 'a fence or boundary formed by a dense row of shrubs or low trees.' When used as a verb, 'to hedge' can mean to plant a hedge or protect an area with such a planting, or it can describe the action of trimming a hedge. Usually, plants used in hedges can be pruned so as to form dense screens. While some types of palms may form a dense row of low trees, the palms in these proceedings do not, nor can they be pruned to form a dense screen - if the single growing point at the apex of a palm's stem is cut, it will die.
Considering these factors - the 2009 review's recommendation, the growth habit of palms, the inability for palms to be pruned as hedges - I find that the Perssons' palms are not planted so as to form a hedge according to the intended meaning at s 14A(1)(a) of the Trees Act. Accordingly, Pt 2A does not apply to the palms and the Court can make no orders. Should I be wrong on this, I consider other jurisdictional requirements below.

The trees severely obstruct the Applicant's view

Before the Court can make orders in these proceedings, I must be satisfied that the palms are severely obstructing a view from the Applicant's dwelling (s 14E(2)(a)(ii) of the Trees Act).
From the rear of their Vaucluse home, the Arnolds have a west-facing view that takes in Sydney Harbour, the Harbour Bridge, the CBD, and land both north and south of the Harbour. The view can be enjoyed from their living room and their outdoor terrace. Photos from 2002 in Mr Arnold's affidavit of 18 October 2021 (Exhibit B, pp 3, 4) show this valued view. Photos from 2021 (pp 5, 6) show the Perssons' palms obstructing the view. It appears that these photos are taken from positions that maximise the impact of the view obstruction, zooming in on the palms to a degree and omitting the broader view available off to the side. However the most valued parts of the view, such as the Harbour and the 'iconic' Harbour Bridge, recognised as high-value views in the view-sharing principle established in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity"), are obstructed by the palms in Mr Arnold's photos. The Perssons argued that each iconic feature could be seen in different photos, but Mr Tsang opined that the Arnolds could not enjoy all iconic features at once.
Considering the value of iconic views, such as those identified in the Tenacity view-sharing principle and present here, I find that the palms severely obstruct a view from the Arnolds' dwelling.

Orders would not be made

The Arnolds seek orders for the removal of all or some of the palms or, failing that, orders for regularly pruning the palms.
Before making orders, the Court must also be satisfied at s 14E(2)(b) of the Trees Act that "…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." To determine this, matters to be considered by the Court are set out at s 14F. I discuss relevant matters below.
The palms are planted close to the common boundary, approximately 10 metres from the Arnolds' rear terrace.
The Arnolds' dwelling was constructed a few years after Mr Persson planted the palms. In his affidavit, Mr Persson stated that he understood that no relief was available where the trees pre-existed an applicant's dwelling, as per Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150 ("Fryday"). However Mr Persson misunderstands the interpretation in Fryday: the critical consideration for the Court is whether the trees already obstructed the view when the Applicant purchased or moved into the property, not whether the trees existed: see McDougall v Philip [2011] NSWLEC 1280. Mr Arnold's photos demonstrate that the view now obstructed by the palms was available to the Arnolds when they first came to their property. Establishing that the Applicant once enjoyed the view is not, alone, sufficient to justify the making of orders. That fact must be considered along with other matters at s 14F of the Trees Act. The Trees Act does not grant an unqualified right to restore a view.
Pruning or removing the trees would require consent from Woollahra Municipal Council (Council). After receiving a copy of Mr Arnold's application, Gorka Ojeda, Council's Tree Management Officer, made a written submission to the Court (Exhibit 2), summarising the outcome of a recent application from the Perssons for consent to prune the palms. He explained that the palms were 'prescribed trees' and that pruning or removing the palms requires Council's consent. Council refused the recent application for pruning the palms, saying that recent pruning had negatively impacted the palms and that further pruning "…would likely result in a gradual decline in their health and long term viability." The application sought consent to prune the palms; Council did not consider removal of the palms, which would require a separate application.
The palms provide some amenity value and ecosystem services to the area. They provide privacy to the Perssons, who have a pool in their back yard, which is downslope from the Arnolds' property and others that might overlook. Ms Persson submitted that they were not too concerned about privacy. Mr Tsang replied that the email correspondence between the parties showed that privacy was an issue for the Perssons. Mr Arnold has proposed orders that he says will maintain the Persson's privacy by replacing the palms with other screening plants. He is willing to plant the replacement trees on his property.
At s 14F(q) of the Trees Act, the Court is required to consider "…the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view". I found above that the palms do not form a hedge. Unlike a hedge, which generally continues to form a screen over time, often for several decades or longer, the palms' foliage is limited to the top of their stems, which continue to grow taller each year. A few years ago, the Arnolds enjoyed their view. The palms grew taller and their fronds obstructed the view. As they grow even taller, their fronds will be above the Arnolds' valued view, again allowing the Arnolds to enjoy their view. The Arnolds have a period of several years where their view is partially obstructed. During that period, although iconic features of the view might be obstructed from certain positions, they can view those features by moving around on their property; and, the broader view, where it is unobstructed, still includes valued water views. Considering the extent of the remaining view, and the temporary nature of the current view obstruction, I find the Applicant's interest in pruning or removing the palms does not outweigh the trees' benefits. That is, in these proceedings, the Applicant's wishes do not outweigh the Respondents' wishes. I would not make orders to interfere with the palms.

Orders

As a result of the foregoing, the Court orders that: 1. The application is refused. ……………………………….

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: 27 May 2022

(2012) 190 LGERA 334

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