COMMISSIONER: Georgina Black (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 for the removal of trees that form a hedge on neighbouring land belonging to Samira Jeihooni (the Respondent). I have read the material filed with the Court by the parties.
[2]
Background
Georgina Black, the Applicant, has occupied her Rose Bay property, known as 2 Bayview Hill Road, since about July 2015. She shares a side boundary with the Respondent, Samira Jeihooni.
From 2015 until around 2021, Ms Black enjoyed uninterrupted views of Sydney Harbour, including the Sydney Harbour Bridge, the Opera House and the Sydney City skyline.
On 6 November 2019 the NSW Land and Environment Court approved Development Application No DA 510/2018 (the Consent) for the demolition of the existing dwelling and the erection of a new dwelling house, swimming pool and landscaping at the Respondent's property at 4-6 Bayview Hill Road. The Consent approved landscape plans prepared by Greenplan dated 11 October 2019, which proposed planting in the form of Washingtonia Robusta palms with a height at maturity of 12m.
Black v Jeihooni [2023] NSWLEC 1193 | Case summary | Zoe
The Consent was subsequently modified on several occasions and the approved landscape plans were replaced with an amended plan prepared by Landmark dated 16 November 2020 and includes Royal palms (Roystonia Regia) which grow to a height of 12-15m. Condition C1 of the Consent as modified imposes various restrictions on the type and height of trees that may be planted, including a condition that the proposed Royal palms on the western section of 4-6 Bayview Hill Road are to be substituted for an alternative species of palm with a maximum mature height of 15m. It is understood that a new landscape plan was issued with the construction certificate to address Condition C1 and that plan identified sicx Cabbage tree palms to replace the Royal palms (Refer Figure 1), The six trees were subsequently planted in November 2021. Trees 1-4 are Livistona australis (Cabbage tree palms) planted on the southern side of the swimming pool and parallel to the common boundary with the Applicant's property and Trees 5-6 are Washingtonia robusta (Mexican fan palms) planted on the northern side of the pool.
Figure 1 - CC Approved Landscape Plan - Extract from Mr Macdonald's evidence
Ms Black has submitted an application with the Land and Environment Court, pursuant to s 14B of the Trees Act, seeking orders for Ms Jeihooni to remove the six palm trees and plant different species that reach no higher than eight metres at maturity.
Subsequent to the lodgement of the application, I understand the Respondent has taken steps to prune the trees. The Respondent's position is that the trees make a contribution to the privacy of their garden, swimming pool and house and to the landscaping of their garden. They also note the trees provide shade around their swimming pool.
Before the Court has the power to make any orders under the Trees Act with respect to the trees, there are a number of jurisdictional tests that must be satisfied. These tests include determining if there are two or more trees that form a hedge, and if they severely obstruct a view. It is only if those tests are satisfied that I would then have the power, under the Trees Act, to proceed to make orders to remedy, restrain or prevent the obstruction of views, which can include orders for removal of the trees.
[3]
Onsite view and hearing
The hearing commenced with an on-site view at Ms Black's property and proceeded to Ms Jeihooni's property, allowing for observations of the trees and observations from the viewpoints from which the Applicant says their view has been obstructed. Ms Black and a representative of Ms Jeihooni were present. Also present were legal representatives, town planning experts and arborists for the parties. Following the site inspection we returned to the Court for the remaining part of the hearing.
At the Black property, we were taken to the main kitchen dining and living area, two first floor bedrooms and a downstairs secondary living area. We observed the views from the various viewpoints from which they say their view has become obstructed. The views are iconic views to the Sydney City skyline, the Opera House and the Sydney Harbour Bridge. The Applicant contends that she enjoyed uninterrupted views from those areas to the Sydney City skyline prior to the planting of the palm trees as a hedge in her neighbour's property.
The Applicant's arborist, Ms Mackenzie is of the view that the trees are planted as a hedge, explaining that the six palms are arranged in two rows, a row of four on the southern side of the pool (Palms 1-4) and two on the northern side of the pool (Palms 5-6). In Ms Mackenzie's view, whether the two rows are deemed to form one hedge or two, each group contains two or more trees. Ms Mackenzie goes on to explain in her evidence that the palms have been planted with regular spacing, approximately 3 metres between each plant and Trees 1-4 are in a row less than 1 metre from the boundary of the Applicant's property. In Ms Mackenzie's opinion, the degree of regularity and arrangement identifies this row of palms as a hedge and satisfies subss (a) and (b) of s 14(1) of the Trees Act.
The Applicant's town planner, Mr McDonald provided evidence that the approved landscape plan (refer Figure 1) shows that the planting has a high degree of regularity and arrangement in a linear fashion, which has the effect of a hedge. With regard to the form that the planting takes, Mr McDonald's evidence states that when viewed from the living level dining and kitchen areas of Ms Black's property, the expansive foliage of the lower two of the four trees, together with the trunks of the two taller of the four trees, all planted in line have the effect of forming a hedge. Mr McDonald further notes that with regard to the form the planting takes when viewed from the impacted first floor bedroom, the extensive foliage of the two taller trees forms a hedge.
With regard to view loss, Mr McDonald provided evidence that the views enjoyed when the dwelling was purchased and prior to the neighbouring trees being planted were exceptional, both in terms of quality and quantity. He notes that the dwelling, including the siting of the kitchen, the kitchen island bench and sink, and the dining room - all high use and high traffic areas for the occupants and visitors both day and night, was designed and oriented to take advantage of the exceptional views, and specifically the views to the two icons being the Sydney Harbour Bridge and the Sydney Opera House, as well as the wider context in which these can be viewed within the panorama extending from North Sydney and Milsons Point to the Sydney CBD, all fronting Sydney Harbour. Mr McDonald notes that in this case the circumstances are that the Applicant's house is situated on the waterfront with a "front-row seat" looking west and north-west, albeit, in part, over the south-west corner of the adjoining property due to the unusual boundary "dog-leg". The previously available views contributed significantly to the qualitative enjoyment of these spaces, as well as the qualitative enjoyment of the impacted first floor bedroom.
Mr McDonald concludes that (Trees 1-4) result in a severe and devastating impact on the Applicant's views and that view loss (of Sydney harbour and the iconic Sydney Harbour Bridge) is particularly apparent from the principal dining room and kitchen and the second (first floor) bedroom. Mr McDonald relies in part on the principles in Tenacity Consulting v Warringah (2004) 134 LGREA 23; [2004] NSWLEC 140 to assess the loss of views.
[5]
Respondent's submissions
The Respondent submits that the palms were planted for privacy, shade and amenity around the swimming pool and to frame the house when viewed from the Harbour and these trees were planted to comply with the Consent granted by Council and subsequent construction certificate, for the recently erected dwelling house and swimming pool.
On the issue of whether the palms were planted as a hedge, the Respondent's arborist, Mr Home disagrees with Ms Mackenzie, noting in his evidence the slender trunks with fronds at the top of the trunks and spacing of about 3 metres between the canopies, have not been planted so as to form a hedge. Mr Home notes that the trees have been planted such that the fronds from each tree are at varying heights and are not touching one another, the canopies have a void of about 3 metres between the canopies and the tree species and spacings as planted are ineffective at creating consistent screening at the boundary. Mr Home provided evidence that the heads of the palms will never connect due to the 3-3.5m spacing between the heads of the trees and that the neighbours can see through the palms as there is no lower canopy.
Mr Mead, town planner for the Respondent provided evidence that the views from the Applicant's property must be assessed individually and in totality. In Mr Mead's opinion, there needs to be a recognition of views that are retained as well as those lost. He noted that whilst some view is lost from certain seats at the dining table, it must be recognised that other parts of the table retain views. Similarly, Mr Mead notes that the view from the kitchen bench is unaffected at its southern part and with the recent pruning the view is retained even at the kitchen sink (but for one trunk). Mr Mead did not agree with Mr McDonald's position that would appear to suggest that determinative weight should be given based on the loss of view from a small number of viewing locations throughout the dwelling, and a small number of locations within rooms that are likely to be most frequently used.
With regard to the issue of whether the trees form a hedge, Mr McDonald refers to the palm fronds forming a continuous screen, whereas Mr Mead does not agree that the palms form a continuous screen. Mr Mead notes that the Macquarie Dictionary defines continuous as "having the parts in immediate connection, unbroken" and that screen is defined as "a covered frame or the like……, serving as a shelter or partition." Mr Mead's opinion is that the trees are not continuous or a screen as the palms are separate, spaced and of different heights and their base is limited to trunks without foliage which cannot form a screen and the canopies generally do not interlock.
[6]
Jurisdictional tests
In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22]. These matters are outlined below.
[7]
The trees are principally on the Respondents' land
From my own observations onsite and from the evidence, I am satisfied that all of the palm trees are situated on the Respondent's land (s 4(3) of the Trees Act), so the Applicant has been able to apply for orders pursuant to s 14B.
[8]
The Applicant made a reasonable effort
I am satisfied that the Applicant has made a reasonable effort to reach agreement with the Respondent. The Applicant's husband has spoken to the Respondent's husband on 26 November 2021, outlining their concerns and seeking that the palm trees be removed. The Applicant's landscape designer also met with the Respondent on 9 December 2021. The Applicant's husband subsequently met with the Respondent's husband on 16 December 2021 to again discuss the removal of the trees and offer to pay for their removal, which I note was declined.
On 21 January 2022, the Applicant's solicitors, Bartier Perry wrote to the Respondent seeking that the six palm trees (the trees) be removed as they have severely obstructed their client's views. The nature of communications between the parties during the hearing satisfied me that they would be unlikely to reach agreement.
[9]
Do the trees form a hedge?
Part 2A is the relevant part of the Trees Act that gives the Court the power to make orders concerning high hedges that obstruct views. However, Pt 2A only applies in the circumstances specified in s 14A of the Trees Act, which provides, at (1):
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).
There is no argument between the parties that the palm trees are higher than 2.5m above existing ground level, which satisfies s 14A(1)(b). However, the parties disagree on the issue of whether the trees are planted to form a hedge. I am assisted by Chief Judge Preston's discussion of Pt 2A of the Trees Act in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192. At [28], his Honour found that s 14A(1)(a) requires "…that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present".
In many cases, it is known whether the trees were originally planted to form a hedge, especially when one of the parties planted the trees. In many cases, it is also obvious from the trees' appearance whether they were planted to form a hedge or not.
Mr Farland, counsel for the Applicant, argued that the fronds of the palms form a continuous screen, are planted in a regular linear fashion adjacent to the boundary, are of a similar age and all trees were planted at the one time and therefore form a hedge. On the other hand, Mr Hemmings, counsel for the Respondent, argued that the trees are not planted to form a hedge, but were planted as feature trees to frame the house and pool, provide shade and amenity around the existing swimming pool and to comply with the Council approved landscape plan, for the recently constructed house and swimming pool on the Respondent's property. Mr Hemmings argues that whilst the palms are planted in a row, they have been planted to follow the line of the swimming pool and to provide landscape amenity, privacy and shade for people using the pool and garden.
I find the trees are not planted to form a hedge for three reasons. Firstly, the palm trees are not planted close enough together to form a continuous barrier or a screen.
Secondly, I find it unlikely that someone attempting to establish a hedge or screen would have planted palm trees which characteristically have a straight slender trunk with fronds at the top of the trunk. It is more likely, as suggested by Mr Hemmings, that these were planted as specimen trees to provide amenity for users of the swimming pool.
Thirdly, there is no sign that these trees have ever been maintained by the Respondent as a hedge. In fact, the Respondent advised that they annually prune the fronds so that dead fronds and fruit/seeds do not drop into the pool or the neighbour's yard. While there is no strict definition of a hedge in the Trees Act, one of the defining features of a hedge is that it is a row of trees or plants, generally maintained to provide a screen to a certain height. The Oxford Dictionary defines a hedge as "a row of bushes or small trees planted close together, usually along the edge of a field, garden or road".
Furthermore, the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the 2009 Review') recommended (Recommendation 9(b)) that the scope of Pt 2A of the Trees Act be limited. My emphasis is added below in italics.
"b) That this jurisdiction be strictly limited, with applications restricted to
hedges which:
• are both high and give the effect of a solid barrier, and
• are causing severe impact for a dwelling, and
• have caused the impact to the applicant (not to the previous occupant), and
• are located between neighbours on adjoining land."
The description of trees that give the effect of a solid barrier aptly suits many of the cypress, bamboo and other hedges that have come to the Court and for which orders have been made, but it does not describe the six palm trees in the Respondent's property, which are more like feature trees around the swimming pool, growing in a row, with tall slender trunks and fronds at the top. The subject palm trees certainly do not give the effect of a solid barrier or screen and are not planted close enough together to form a continuous screen.
Because I find that the trees are not planted so as to form a hedge, they are not trees to which Pt 2A of the Trees Act applies, and I cannot make any orders for them.
Even if I am wrong about whether the trees form a hedge under s 14A(1)(a), the next step is to assess the severity of the obstruction of all or any of the views from the Applicant's dwelling, as a consequence of any or all of the trees.
[10]
View obstruction not severe
According to s 14E(2)(a)(ii), the Court must not make an order under Pt 2A of the Act unless it is satisfied that the trees concerned are severely obstructing a view from the Applicant's dwelling.
Section 14E(2)(a) states:
14E Matters of which Court must be satisfied before making an order
…
(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…
From my observations at the onsite view, I noted that the vast majority of views from the Applicant's dwelling are still available, and as Moore SC and Hewett AC found in Haindl v Daisch [2011] NSWLEC 1145, the totality of the views must be considered.
I accept the Respondent's town planning expert's observations that the scope of each view is large and that the palms presently obstruct very little of the views. Some fronds of the palms may obstruct small parts of views from the Applicant's dwelling. For example, my observations on site were that the palms do obstruct views of the Harbour and the Sydney Harbour Bridge from several seats at the dining room table or from one particular view from the kitchen, however the totality of the view, including views of Sydney Harbour, the Harbour Bridge and Opera House from other parts of the dining room table, dining room, living room, kitchen, secondary living areas and bedrooms are retained. From my observations, I do not find that there is a severe obstruction of views here.
I note that the Applicant is concerned that the trees have been recently pruned and that when the fronds re-grow their view will be further impacted by the palms. However, the Applicant's concerns regarding future obstruction of their views does not give the Court jurisdiction to make orders. As Fakes C discussed at [14] in Tooth v McCombie [2011] NSWLEC 1004 the obstruction must exist at the time of the hearing.
As a result, the application must be dismissed. If in future the Applicants find that a severe obstruction occurs and that the trees form a continuous screen, that would be a change in circumstances and the Applicant would be able to make a new application to the Court, as described in Hinde v Anderson and anor [2009] NSWLEC 1148.
[11]
Orders
As a result of the above, the orders of the Court are:
1. The application is dismissed.
2. All exhibits are returned.
L Sheridan
Acting Commissioner of the Court
[12]
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Decision last updated: 26 April 2023