Brandt v Shanahan

The applicant's case

1. Ms Brandt's application did not specify the orders sought, but her verbal submission encapsulated the following orders: 1. The Juniper hedge to be pruned and maintained permanently at the current level, or to a height of 2.5 metres, so as to allow the retention of the view of the "lights of Camden", and distant countryside views towards the east.

The respondents' position

1. The respondents claim to have not planted the trees to block the applicant's hedge, or her view, but to protect their family "from injuring themselves along the dangerous fence extension", allegedly installed by the applicant prior to their occupation. Mr Shanahan notes that they were also planted as a barrier, and to provide protection from westerly winds and sun, to provide privacy to west side bedrooms and bathrooms, and to mitigate the noise from the applicants pool pump.
2. The respondents resist pruning of the trees to reduce their height, as it will ruin their natural form and shape, will commit them to ongoing maintenance, and because of the loss of the aforementioned attributes and amenity which the trees provide, and will increasingly provide for them.

Jurisdictional requirements

1. 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].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: 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).
3. The hedge is comprised of about 65 Juniper trees. They were planted by the respondents in a linear form along the boundary and their canopies meet, or are close together. Most of them exceed 2.5 metres in height.
4. The Court has generally taken a purposive approach in its interpretation of s 14A(1)(a). In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom) at para [45], Moore SC and Hewett AC state: "…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 understanding of the word, would be perceived as a hedge."
5. At [66]-[67] of Wisdom, it was determined that as long as two or more trees in the 'hedge' have reached the prerequisite height of 2.5 metres, the entire 'hedge' is deemed to have satisfied the test in s 14A(1)(b).
6. On this basis, I conclude that s 14A(1) is satisfied.
7. Based on her application, and copies of letters to both Mr Shanahan, and to the Court, it appears that Ms Brandt misunderstood this element of the Act, and interpreted this 2.5 metre minimum tree height required to engage the jurisdiction, as the maximum height to which hedge trees obstructing views are 'legally' allowed to grow. This misunderstanding, which arises occasionally in 'hedge' cases, also appears to have fuelled her outrage, but the issue is clearly addressed in the 'Annotated Trees Act', readily accessible on the Court's website.
8. Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: 14B Application to Court by affected land owner (a) …. (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
9. As is not uncommon with many tree disputes, negotiations between the parties have at times been unpleasant. For the period of her occupation from 2010 - 2014, the applicant enjoyed the ability to maintain an unimpeded view to the east. Once the neighbouring property was sold, and Council approved development commenced, it may be considered unreasonable to expect to maintain the same extent of view as when the block was vacant.
10. Nonetheless, the applicant has satisfied the requirements under s 14E(1)(a) to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. She has communicated with the respondents, verbally and in writing, requesting discussions and negotiations.
11. 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 in the hedge.
12. 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) … (ii) are severely obstructing a view from a dwelling situated on the applicant's land.

View obstruction

1. Windows within the applicant's open plan living and kitchen areas are the relevant views considered from within the house, and these shall be deemed as V1 and V2 respectively. A diagram with nominated viewing locations, required at question 2, was not included in the applicant's 'Tree Dispute Claim Details (High Hedges)'. Viewing locations from the garden and pool surrounds do not satisfy the jurisdiction of the Act.
2. From V1 and V2, the view towards the north north-east is blocked by a wall of the applicant's dwelling, and restricted by various trees in her own garden, including a Chinese Tallowood, to the north-east. The roof of the respondents' house entirely blocks the view across an arc from the north-east around to the east, and Ms Brandt has allowed her own Photinia hedge to grow taller across this view, to reduce the extent of the roof exposure, and aesthetically soften the house's impact.
3. Beyond the roofline, towards the east south-east, a view of distant countryside is available, but only through a relatively narrow arc. Though the applicant's ability to see the lights of Camden was contested by Mr Shanahan, it is not unusual for twinkling lights from urban areas to figure significantly, as a feature within views. Certainly, the sense of relief from enclosure provided by visual access to the distant gently undulating rural landscape, through this narrow passage, is coveted by the applicant, in common with many people. In this context, taking a qualitative perspective, I am satisfied that the current obstruction of this narrow view, is a severe obstruction.
4. Further around towards the south-east, a Corymbia ficifolia cultivar (Flowering gum), growing as a specimen within the respondents', to the east of the hedge, duplicates the visual barrier imposed by the Juniper trees, such that no view benefit would be gained from intervention with this section of the hedge.
5. This Flowering gum is probably one of 11 specimen trees planted around the respondents' garden that the applicant noted would also likely impact her views, now or in the future. Section 14B of Pt 2A of the Act covers obstruction of views or sunlight by hedges only, as analysed above. Section 7 of Pt 2 of the Act provides jurisdiction related to damage or injury caused by individual trees or groups of trees. None of these 11 specimen trees are part of, or related to the hedge, and the Act provides the Court with no powers relating to view impairment for such specimen trees which are unrelated to a hedge.
6. In her application and correspondence, Ms Brandt noted the increased obstruction of views which is likely in the future. While s 14B of the Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word are in s 14E(2)(a)(ii), requires the trees the subject of the application to be severely obstructing the view at the time of the hearing. See Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15].
7. This similarly applies to Mrs Shanahan, who submitted that a second Flowering gum tree, located to the north of the one addressed above at [26], will in future impose a view obstruction on part of the view currently blocked by the hedge, and that this should reduce the extent of intervention considered to remediate the severe obstruction. As explained at [28], future considerations are not relevant to this situation.
8. To the south-east, beyond the Flowering gums, the available views mainly comprise much more proximal Eucalyptus trees, which appear bigger and taller, and are much more visible. Even if these were more obstructed, the degree of severity would be considered less than severe.
9. Further to south south-east, obstruction of views is caused by the applicant's own vegetation, and towards the south, readily open views are available.
10. Overall, I am satisfied that trees comprising a section of the respondents' hedge are severely obstructing views from V1 and V2, and thus s 14E(2)(a)(ii) of the Act is engaged.
11. As s 14E(2)(a)(ii) had been satisfied, there is a requirement under s 14E(2)(b) to also consider the balancing of interests. This states: 14E Matters of which Court must be satisfied before making an order … (2)(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.
12. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required: 1. The hedge is located in the respondent's property parallel to and close to the common boundary. 2. The trees were planted after occupation by the applicant. 3. The trees have grown to their current height since that time, and most of them exceed 2.5 metres. 4. The trees are not protected by Council's Tree Management controls as Camden Development Control Plan 2019 exempts hedge trimming from its permission regime. 5. There are apparently no other relevant development consent requirements or conditions relating to the applicant's land or the land on which the trees are situated. 6. The trees do not have any historical, cultural, social or scientific value that is worthy of consideration. 7. The hedge is likely to make a minor contribution to biodiversity, as a potential source of habitat and perhaps food for native fauna. The respondents note various species of birds and lizards interacting with the hedge. 8. The trees provide a moderate contribution to the natural landscape, and scenic value of the land on which they are situated, as a uniform backdrop to the respondents' diverse garden. 9. The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity. 10. The trees assist with soil stabilisation, and absorption of runoff flowing from higher up the slope. 11. This species can normally be pruned relatively often to maintain a reduced height without unduly affecting its health or function. Nonetheless, all pruning causes stress in trees, and ongoing maintenance should include attention to adequate moisture, drainage and nutrition requirements. 12. Being on a higher level, the applicant's garden and rear living area overlooks the respondents' yard, and the hedge contributes to providing privacy for the respondents. It also adds to garden design and landscaping value of the garden, along with minor protection from western sun and winds. 13. There are other trees in both the applicant's and respondents' yards, and other neighbours' properties, which are restricting the applicant's view, and allowance will be made for the impact of these other trees, should orders be made for intervention with the hedge. 14. Neither the applicant nor the respondents have taken action to prevent or rectify the obstruction. 15. The hedge is evergreen. 16. The obstructed view is gained through a relatively narrow section of the long hedge, and includes distant rural views, that provides a sense of depth and space. 17. The views are obstructed from the applicant's open plan living area and kitchen.

Conclusion

1. Pruning of a small section of the hedge will be ordered so that distant district views are regained for the applicant, while retaining most of the hedge's benefits, particularly privacy and landscape amenity, for the respondents. It is unlikely that the judicious pruning required will have a marked negative effect on the trees, particularly if their various growth requirements are monitored, and satisfied. This should result in little loss of amenity for the respondents, and significant benefit for the applicant.
2. When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention here.

Orders

1. The orders of the Court are: 1. Within 30 days of the date of these orders, the respondents, at their expense, shall prune a continuous row of 12 Juniper trees, comprising a section of their hedge, so that none of these 12 trees exceed a height of 2.10 metres above their current ground level. The trunk base of the Juniper tree at the northern end of this continuous row (T1), is located approximately 1.75 metres south of an east-west alignment drawn along the face of the brickwork surrounding the south facing window, located nearest the south-western corner of the respondents house, and extending to their western property boundary. The trunk base of T1 is currently in alignment with the vertical step in the applicant's Photinia hedge. The other 11 Juniper trees to which this order applies, comprise a continuous row to the south of T1. 2. The respondents, at their expense, shall maintain this continuous row of 12 Juniper trees, so that at no time in the future, shall any of these 12 trees exceed a height of 2.10 metres above their current ground level.

Amendments 11 January 2021 - Jurisdiction on cover sheet amended from "Class 1" to "Class 2". 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: 11 January 2021