Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor

Land and Environment Court (NSW)|2011-11-23

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: These are two applications pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by two owners of properties in the same unit block against the owners of trees growing on an adjoining property in Mosman. The applications are made on the basis of obstruction of sunlight to windows of the dwellings and to views from the dwellings. 2The applicants are seeking orders for pruning or removal of two Harpephyllum caffrum (Kaffir Plum) trees, identified as T2 and T3 in the applications; and the selective pruning of T4, a mature Camphor Laurel, T5, a tree noted as a Linden but identified on site as a Celtis sp (possibly C. occidentalis (Hackberry)), and T6 a Jacaranda. Tree 1 on the plan is a Camphor Laurel to the north of the Kaffir Plums, however no orders are sought with respect to this tree.

The trees 3The trees are growing along the eastern boundary of the respondents' property in sections of a retained garden bed that steps down the relatively steep slope from the street to the north and the dwelling to the south. There are a series of sandstone rock shelves and small terraces. At the southern end of the respondents' property, beyond the dwelling, is a large and mature Liquidambar. Between the Liquidambar and T6 is a very large Brachychiton discolor (Lacebark) growing on the property to the east between the boundary fence and the adjoining dwelling. 4According to the respondents' material, the Kaffir Plums were planted in 1996 in accordance with development consent conditions for an inclinator. The trees are approximately 2.5m apart. 5Tree 4 is a large and mature Camphor Laurel of unknown provenance and age. In 2010, Mosman Council granted permission for several large branches to be removed from this tree. The majority of the branches were removed from the eastern side of the tree that overhung the common property of the applicants' unit block as well as the property to the south. The evidence of this pruning is clearly visible and the result is quite extensive crown lifting. A branch described as the third lowest branch was retained. This relatively sinuous horizontal branch is growing to the southeast over the property to the south of the applicants' units. T4 is approximately 8m down slope of T3. 6Tree 5 is a Celtis. It is quite possible this tree is self-sown as Mr Symonds reported having to remove many seedlings of this species from his garden however, it may also have been planted by former owners of the respondents' property. The canopy of this tree sits between that of T4 and T6. It is growing in a small retained section of the garden bed some 3-4 m to the south of T4 and some 4.5m to the north of T6. 7T6 is a mature Jacaranda. The majority of the canopy appears to be growing towards the east over the property to the south of the applicants' units. 8Apart from the Lacebark and the Liquidambar, it is also relevant to note the presence of other trees; in particular, a Jacaranda on the property to the west of the respondents' land and which overhangs their dwelling.

The Ghenzer property 9The application from the Ghenzers concerns the obstruction of sunlight to, and views from, a bedroom window (V1) on the south-western corner of their top floor unit. The closest trees are T2 and T3. The views said to be obscured are views of the sky and the district to the south/south-southwest. The Ghenzers contend that these views were available from this window when they purchased their unit some 14 years ago. The view from the living room was noted for comparison; this a view above the canopies of T5 and T6 to the southwest of a triangular section of Mosman Bay and beyond that is framed by the Liquidambar to the east and T4.

The Bentley property 10The Bentley property is a ground floor/garden unit below the Ghenzer unit. The Bentleys purchased their property around the same time as the Ghenzers, some 14 years ago. Mr Bentley concedes that he has no photographic evidence of the views available to him when he moved in however, he states that he had a similar triangular view of Mosman Bay and its surrounds to that available from the Ghenzer property above his. 11Five windows are nominated. W1/V1 is a bedroom (below V1 on the Ghenzer property). The view from this window includes the ridgeline and district views of Mosman to the southwest, the view to the south includes the Lacebark and the Liquidambar. The views to the south-southwest are filtered by the low branches of T3 and by the Jacaranda on the property to the west of the respondents' property. The view to the SSW towards Mosman Wharf is limited by a red brick duplex. 12V2 and V3 are dining room windows to the west of V1. From a standing position, the skyline of Kings Cross can be seen in the distance. The view to the SSW is generally framed by the low branch of T4 with the foliage of T5 below it and by the Jacaranda on the adjoining property. I noted the foliage of other more distant trees beyond the Celtis. 13V4 and V5 are from windows of the living room. From a standing position at W4 it is possible to see filtered views of yachts moored in a portion of Mosman Bay. The upper western portion of the canopy of T6 limits part of the view from both windows; the majority of the obstruction appears to be from the Jacaranda on the adjoining property. 14In regards to light, Mr Bentley contends that notwithstanding the southern aspect of his property, the trees on the respondents' property limit the ambient light to the nominated windows.

The framework for consideration 15There 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) 16Only 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)(i) and (ii). This states: (2) The Court must not make an order under this Part unless it is satisfied that: (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, 17That is - do the trees impact on views from or sunlight to the applicant's property? If there is an impact, is it severe? 18If the impact on views/ sunlight 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. 19In 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.

Are the trees planted so as to form a hedge? 20The Act does not define the word 'hedge' however the Court has considered its meaning in several cases. Relevantly in Wisdom v Payn [2011] NSWLEC 1012, Moore SC and Hewett AC at [44]-[47] state: 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 that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a 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. 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 to be a hedge. 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 modestly 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 (as is the case here) cannot be so regarded. 47 Having rejected Mr Hannaford's submission about a purely subjective test based on the eye of the beholder, we turn to consider the Bottlebrush. 21In McLaren v Lewis [2011] NSWLEC 1170, the Court at [25]- [26] expanded on the findings in Wisdom : 25 In 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.....[reference to paragraph [46] in Wisdom ] 26 In 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. 22Therefore the question posed by s 14A(1)(a) - are the there groups of 2 or more trees planted so as to form a hedge - remains to be answered. Would anyone walking onto the respondents' property perceive the trees in question to be 'planted so as to form a hedge'? Is there a degree of regularity, arrangement and spacing of the planting that would lead to a conclusion that the trees form a hedge? 23In this regard, I find that of all of the trees subject to the application, only T2 and T3 could be construed as 'planted so as to form a hedge'. These trees are relatively close to one another, of the same species and planted on a similar level. Whilst the Act does not specify that the trees must be of the same species or planted on the same level, there must be a perception that the trees form a hedge in 'the ordinary English understanding of the word'. In my opinion, trees 4, 5 and 6 are individual specimen trees planted (or self-sown) as individuals over many decades. The degree of separation, the range of species and their relative ages would not, in my opinion, lead the 'reasonable person on the street' to conclude those three trees formed another hedge. If there were any evidence to confirm that the Celtis is self-sown, it would be beyond the Court's jurisdiction as any tree to which s 14A applies must be 'planted'. 24Therefore, as trees 4, 5 and 6 do not satisfy the jurisdictional test in s 14A(1), the Court has no jurisdiction to make any orders for any intervention with those trees. 25However, on this basis, I am satisfied that trees 2 and 3, the Kaffir Plums, do form a hedge for the purpose of the Act.

Sunlight 26Both applicants refer to the restriction, caused by the trees on the Symonds' property, of ambient light entering the nominated windows. 27The Act uses the word "sunlight". In Drewett v Best [2010] NSWLEC 1305, the Court has accepted that this is a reference to direct sunlight and not simply to daylight or ambient light. All of the nominated windows face south however, notwithstanding the proximity of the foliage of T2 to V1 of the Ghenzer dwelling, there is a large area of open space to the south and southeast that enables access to daylight. 28However, as the Act species sunlight, the southern orientation of the windows is such that they would not receive direct sunlight in any event and it is certainly not severely obstructed as a consequence of trees 2 and 3. Therefore as s 14E(2)(a)(i) is not satisfied, no orders can be made in relation to this contention. This elements of both applications is dismissed.

Views 29In considering the obstruction of the view from W1/V1 of the Ghenzer property, I accept that the foliage of T2 and T3 is close to that window. The view said to be lost from that window is of district views to the SSW. In putting the applicant's case at its highest, I am prepared to accept that these trees do severely obstruct a view from this window and therefore s 14E(2)(a)(ii) is satisfied. 30Therefore s 14E(2)(b) must be considered, which in turn requires consideration of the discretionary matters in s 14F. Of greatest relevance are clauses (e), (g),(l), (m), (q) and (r). The trees were planted as a condition of consent when council approved the inclinator on the respondents' property. Mr Symonds contends that possums and other wildlife use the trees and therefore they contribute to the local ecosystem and to biodiversity. The two Kaffir Plums provide screening between the part of the dwelling to the west of the unit block and they also contribute to the privacy of the Symonds and their tenants. In the absence of the Kaffir Plums, the very narrow view from V1 along the southern boundary fence to the SSW would be obscured by other trees not subject to the Court's jurisdiction and therefore, any interference with the trees is unlikely to open up the desired view. The nominated room is a bedroom and not a living room and therefore it is reasonable to expect that limited time would be spent in that room looking out the window. District views to the southeast are available from that window. The Ghenzers' living room has the desired views of Mosman Bay. 31Therefore, as a matter of discretion, I do not consider that the nature and severity of the obstruction of views from that window warrants any intervention with either T2 or T3. As s 14E(2)(b) is not satisfied, no orders will be made regarding those trees and the Ghenzer application is dismissed. 32In regards to the Bentley property, it is only parts of the low branches of T3 that limit the view from W1/V1, no other window or viewing point is affected by either of the trees. As stated above, the majority of the obstruction of views from the Bentley property is by the foliage of trees not subject to the application - i.e. the Lacebark, Liquidambar and the Jacaranda on the property to the west of the respondents'. 33I do not consider the view from V1 to be severely obstructed by either T2 or T3 and therefore s 14E(2)(a)(ii) is not satisfied and no orders can be made for any interference with those trees. Even if I were satisfied of a severe obstruction, the discretionary matters discussed in relation to the Ghenzer property would apply. However, the view from V1 on the Bentley property is not so obstructed. Therefore, as there is no severe obstruction of a view from the nominated viewing points on the Bentley property as a consequence of the trees to which s 14A(1) applies, the application is dismissed. 34Therefore, as a consequence of the forgoing the Orders of the Court are: (1)Application 20921 of 2011 is dismissed. (2)Application 20925 of 2011 is dismissed.

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: 23 November 2011

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