Bazett & McFadden v Bonser

Land and Environment Court (NSW)|2020-12-01

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

Wendy Bazett and Lynn McFadden ('the applicants') purchased a vacant property in Ulladulla in 2011. At that time, there was already a row of four young Leyland Cypress ('the trees') on the neighbouring property belonging to Keith Bonser and Lindy Bonser ('the respondents'). Ms Bazett and Ms McFadden completed construction of their dwelling in 2018, at which time the cypress trees had grown, but they still had a distant ocean view across the top of the trees from their main bedroom and a work room on the upper level of their dwelling. Since then, the trees have reached more than 6 metres in height, forming a dense screen only some two metres from these windows and completely obscuring the horizon view. They asked the Bonsers to prune the trees. The Bonsers, wishing to retain privacy and other benefits provided by the trees, did not prune them. The Bonsers told the applicants that they were welcome to prune any branches on their side. The applicants then applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the trees to be maintained below 4.2 metres in height.

Framework for this decision

For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);
The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));
The trees must be severely obstructing either sunlight to a window of the applicant's dwelling, or a view from the dwelling (s 14E(2)(a)); and
The obstruction is such that the applicant's interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The hearing

The hearing took place onsite, allowing me to observe the hedge, views, issues of privacy and other matters. All parties were self-represented.

The trees form a hedge

The four trees are planted in a row on the respondents' property, close to and along their western boundary. Their foliage forms a continuous screen from the top of the boundary fence (1.8 metres) to a height of more than 6 metres. The trees are planted so as to form a hedge that rises to more than 2.5 metres.

The applicants made reasonable effort

The applicants spoke to the respondents and asked for the hedge to be pruned. The respondents refused. At the Court's earlier directions hearing, the respondents offered to prune and maintain the trees at a height of 4.2 metres. They say the applicants' refusal of this offer was not 'reasonable effort'. The applicants explained that the respondents' offer provided them with no certainty that the trees would be maintained at the lower height in future. I find the applicants' efforts to resolve the situation have been reasonable. Considering the absence of any negotiation from the respondents prior to receiving a copy of the Court application, the applicants' insistence that the matter proceeded to a hearing was justified.

The trees severely obstruct a view from the applicants' dwelling

Standing in both the main bedroom and the work room on the upper level of the applicants' dwelling, one is confronted by a wall of foliage only two metres from their windows. Above the hedge, some sky view to the east remains. In the work room, a small part of the distant view is available around the northern end of the hedge when one stands at the window. I could see the headland and water views. Apart from these elements, the remainder of the landscape view and a significant portion of the sky view are removed by the hedge. The impact is more than moderate. There is no question in my mind that the view obstruction caused by the hedge is severe.

Should orders be made?

The Court can only make orders after considering a range of matters set out at s 14F of the Trees Act. This is a process of weighing the trees' benefits and the respondents' concerns against the applicants' interests in finding some remedy. Having considered the matters at s 14F, I discuss below those that are relevant.
Of course, Pt 2A of the Trees Act was not intended to establish a view that has never been available to an applicant (see McDougall v Philip [2011] NSWLEC 1280 at [22]-[24]). The respondents argued that the applicants' photographs show only a very small amount of water view was available above the respondents' dwelling when the applicants first moved into their property. I accept that the water view was limited. Nevertheless, it was available. But more than that, a broad view of the distant landscape and open sky was available. Apart from a limited amount of sky view remaining above the hedge, the applicants' view is now completely obscured from within these rooms. The overall impression has changed from one of an open landscape to one of a wall that closes in the applicants.
The applicants' views are from a bedroom and work room, not from a living room, and are across their side boundary. The view-sharing principle in Tenacity Consulting v Waringah [2004] NSWLEC 140 ('Tenacity'), often referred to in tree disputes, includes at [27]: "For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries" and at [28]: "The impact on views from living areas is more significant than from bedrooms or service areas". It is important to remember that Tenacity's principle applies to view sharing in the context of assessing development applications for buildings. Other planning restrictions usually apply to building heights and boundary setbacks. Generally, no such restrictions apply to hedge plantings, although fence heights are usually restricted. The result is that hedges can provide wall-like screens where buildings and fences might not be allowed. It can therefore be inappropriate to apply all elements of the Tenacity principle in hedge disputes. There is no reason in these proceedings to accept a view loss across a side boundary as inevitable. Also, view loss from a bedroom has been relevant when ordering interference with a neighbouring hedge (for example, White v Baird [2014] NSWLEC 1189 at [54]).
The respondents' interests in retaining the hedge at its current height are real: privacy, amenity, environmental benefits and shading. Their bathroom sliding window faces the applicants' dwelling. However I note that this is a relatively small and frosted window. They have no other windows facing the applicants. Between their dwelling and the boundary the respondents have a clothesline and a garden area that includes greenhouses. They do not want the applicants overlooking these parts of their property. They wish to retain the shading and amenity provided by the cypress trees.
Most importantly, the Bonsers stressed in their submissions that they want to avoid the burden of Court orders, especially any orders that might 'run with the land'. If they sell their property, the immediate successor in title could be bound by any Court orders (s 16 of the Trees Act). As they explained at today's hearing, they are now willing to prune the trees if that would avoid the Court making orders.
The applicants argued that the respondents' offer provides no certainty for their view to be restored and maintained. If it were so simple, they would not have come to this stage of the dispute.
Now that the dispute has come to Court, the Court's role is to determine the matter according to the framework of the Trees Act. The outcome should be fair and reasonable. The Land and Environment Court Act 1979, at s 22, obliges the Court to grant remedies in such a way that "…all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided."
I accept that leaving the matter to the respondents, without Court orders, would not provide any certainty to resolving the dispute. The relationship between the applicants and the respondents does not appear to be a friendly one.
The respondents stressed that they do not want orders that might burden a successor in title. I appreciate this concern. They say they will prune the trees as requested. However, future disagreements over the hedge's height - whether pruning is adequate or is sufficiently frequent - are unlikely to be resolved amicably.
Having considered the respondents' concerns, I still find that the view obstruction is such that orders should be made to give a remedy. Pruning the trees to 4.2 metres would be a challenging task, given the limited space around the trees. To repeat it annually would be more onerous. Initially, such severe pruning would also leave unattractive woody stems at the tops of the trees. It would promote further growth over the applicants' property. Orders for ongoing pruning might be more troubling to a prospective purchaser of the respondents' property than an order restricting the height of any replacement hedge planting along this boundary.
For these reasons, removal of the hedge is the preferred outcome. Although this will impact the respondents' privacy and amenity, it will restore the applicants' view while removing the potential for ongoing dispute over the hedge, and avoiding onerous ongoing pruning orders for the respondents and a successor in title. Rather than ordering ongoing maintenance of any replacement hedge, orders will limit the mature height of the species used for any replacement hedge planting along this boundary, as this should be the least intrusive form of orders that run with the land.

Orders

As a result of the foregoing, the Court orders that: 1. The application is granted. 2. Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the four cypress trees forming a hedge along their western boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 3. The respondents are to give the applicants at least 2 days' notice of the works. 4. The applicants are to allow any access required to their property for the purpose of cleaning up debris. 5. Any further hedge planting along the respondents' western boundary is to be of a species that grows to no more than 4 metres in height at maturity.

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: 18 December 2020

At a glance

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Decision date

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Judgment (10 paragraphs)

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Cases Cited (4)