Brown v Goodbury

The Hearing

1. The hearing commenced with an inspection of the trees on the respondents' property and then moved to the applicant's property where views from seven points nominated by the applicant were considered. The parties made extensive submissions on their respective positions. A number of exhibits were tendered.
2. At the hearing the respondents were self-represented. Previously they had had legal assistance in the preparation of affidavits. Affidavits from both Mr and Mrs Goodbury had been filed, that from Mrs Goodbury being in support of the comprehensive document prepared by her husband. The affidavit of Mr Goodbury as first filed had poor quality reproduction of figures, and was subsequently substituted by a version with improved images. The applicant was represented by Mr Ryan Brown of counsel. To avoid possible confusion, in the judgement I will refer to the applicant as Mr Richard Brown, and his counsel as Mr Ryan Brown.
3. Mr Ryan Brown objected during the course of the hearing to the affidavit filed by Mr Bradbury on 2 March 2018 on the basis that it was not possible for him to test evidence presented, but the material could be considered as submissions. Within the affidavit there were a number of photographs showing views from the nominated advantage points. Mr Ryan Brown objected to these images because they had varying and unknown degrees of distortion, possibly due to the use of a panorama function on the camera. Mr Goodbury had marked on the photographs what he considered to be the extent of view obstruction, and had also produced diagrams which indicated the angular extent of the obstruction, which were used by him to estimate the percentage of the view obstructed. Mr Ryan Brown objected to the images and diagrams on the basis that he could not test them as evidence.
4. The respondents tendered as Exhibit 1 a bundle of documents that included inter alia revised diagrams of possible view obstruction and reproduction of pages from publications of articles regarding pruning of crepe myrtles. Mr Ryan Brown objected to the material for the same reasons as he had to Mr Goodbury's affidavit.
5. Noting Mr Ryan Brown's objections, I received Mr Goodbury's affidavit and the tender of Exhibit 1.
6. The applicant tendered a bundle of three photographs (Exhibit A) showing views from his property taken in and around 1999/2000, before the construction of the Goodbury residence and the planting of the crepe myrtles. He also tendered as Exhibit B, a photograph taken in winter 2017 of the view from his balcony across Port Hacking with the crepe myrtles, lacking leaves, in the middle distance. No objection was taken to either Exhibit A or B
7. The applicant also tended as Exhibit C, an arborist's report by Mr Stuart Rennie of Rennie Bros Tree Surgeons. Mr Rennie was not present at the hearing.
8. Mr Goodbury objected to the tender on a number of grounds. He did not consider that the report met the requirements of the Code of Conduct for Expert Witnesses in schedule 7 of the Uniform Civil Procedure Rules 2005, in that details of Mr Rennie's experience and qualifications were not provided. Mr Ryan Brown responded that the required information was provided in the signature block at the foot of the report, which included that Mr Rennie was an AQF 5 Consulting Arborist (Diploma of Aboriculture).
9. The Court has on occasion been critical of the length of the curriculum vitae included with expert reports (see Haindl v Daisch [2011] NSWLEC 1145 at [18 -19]). While excessively long CVs are to be discouraged, one line in the signature block is off the scale at the other end of acceptability. I would agree with Mr Goodbury that Mr Rennie's report does not provide the information about his qualifications and experience that would reasonably be expected to be included in an expert report. However, while this influences the weight to be given to Mr Rennie's report, I was prepared to permit tender of Exhibit C as an expression of Mr Rennie's views on a number of relevant matters. The weight to be given to the report is also affected by the fact that Mr Rennie had not inspected the trees from within the respondent's property, but only from above and had 'performed a limited visual assessment on the hedge from within the Applicants property; no tree measurements were taken.' (Exhibit C, section 2.1).

Jurisdictional tests

1. Part 2A of the Trees Act sets a number of tests to be met before the Court can consider (s 14D(1)) whether to make orders (see above at [7]).
2. Firstly, the trees subject of the application must be trees as defined in s 3 of the Trees Act. The twelve trees nominated in the application are all crepe myrtles, which fall within the definition. Secondly the application claims that there has been a severe obstruction of views. The applicant's and the respondents' properties share a common boundary and so the trees are situated on adjoining land. Section 14A (1) provides that: 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. There are twelve nominated trees falling into two groups - the trees designated T1 -7 and trees T8 - 12. There is no dispute that the trees were planted. I will return below to the crucial question as to whether they were planted so as to form a hedge. All the trees currently rise to more than 2.5 m above existing ground level

Is there at least one hedge?

1. The crepe myrtle trees fall into two groups as depicted in the following plan prepared by the respondent: Diagram 1 in Annexure A of Mr Goodbury's affidavit showing:

• The position and canopy extent of the 12 crepe myrtle trees (T1-12). The height of each tree is listed in the table to the left of the diagram
• The designated view points in the applicant's residence are labelled V1- V7. Location V7 is from the front door, so the location shown on the plan is several metres south of the actual view point.
• Also marked, as OV 1-21, are what Mr Goodbury considers to be other obstructions to views

1. Mr Ryan Brown, for the applicant, stressed that his client had not verified the position of trees and size of canopies as depicted in the plan, nevertheless he did not object to the Court taking the plan into consideration. The plan shows more detail than the sketch diagram provided in response to Question 2 of the Claim Details Form by the applicant.
2. The definition of hedge has been considered in many judgments on applications bought under Part 2A of the Act. The respondents drew my attention to a number of these, but the most comprehensive and authoritative analysis is by Preston CJ in Johnson v Angus [2012] NSWLEC 192.
3. Turning first to the western group of trees (T8 - 12). There are more than two trees, but were they planted so as to form a hedge?
4. The trees were planted according to a landscape plan prepared for the respondent by his landscape architect, Mr P. Fudge. Mr Goodbury stated that neither he, nor Mr Fudge, intended that the trees T8 - 12 form a hedge.
5. The second reading speech on the introduction into the Legislative Assembly of the Trees (Disputes Between Neighbours) Amendment Bill 2010 (legislation which introduced Part 2A into the Trees Act) included the passage reproduced in Wisdom v Payn [2011] NSWLEC 1012 at [58]-[59]. Pursuant to s 34(2) of the Interpretation Act 1987, we are entitled to have regard to a limited range of extrinsic material to assist us in our statutory construction. In this instance, we refer, pursuant to s 34(2)(f) of the Interpretation Act, to the second reading speech on the introduction into the Legislative Assembly of the Trees (Disputes Between Neighbours) Amendment Bill 2010. This contained the following relevant passage: In accordance with the recommendation made by the review, this bill will give the Land and Environment Court a new, strictly limited jurisdiction in relation to these hedges. To this end the bill inserts a new part 2A into the Trees Act. The object of this part is to create a mechanism by which neighbour disputes about high hedges can be heard and disposed of in a proportionate way, which, firstly, balances the competing rights of neighbours to enjoy their property and, secondly, ensures that the existence and health of urban trees can be maintained. Given the environmental and other benefits of urban vegetation, and the fact that this is a new procedure, the circumstances in which a person can apply for orders in relation to trees that block sunlight and views will be limited to the most serious cases. People will not be able to make an application in relation to a single tree; rather, the new part applies to groups of two or more trees that are planted to form a hedge and rise to a height of at least 2.5 metres.
6. The phrase 'planted to form a hedge' is not the phrase used in s 14A (1) (a) of the Trees Act which is 'so as to form a hedge'. 'Planted to form a hedge' stresses the intent - planting was with the specific intent of forming a hedge, whereas 'so as to form a hedge ' focuses on the function; whatever may have been the intent in planting the trees, having been planted they collectively function so as to form a hedge. In this case the respondent who planted the trees has stated that it was not the intention to form a hedge, but in other cases it may be clear the trees have been planted but the intent of whoever carried out the planting is unknown. As was stated in Wisdom v Payn at [45]: 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.

The question to be answered is how would the group of trees be perceived by an observer

1. The applicant advanced the proposition that trees T8 - 12 constituted a hedge, or possibly three hedges. He argued that by drawing a line through the position of the trunks the trees were laid out in a Z shape. The line of the Z could be regarded as a hedge, or alternatively trees T12 and 9 could be considered to constitute one short limb of the Z, trees T9 - 11 the long diagonal, and trees T11 and 8 the final short limb.
2. A straight line can be drawn between any two points, and as the number of points in the cluster increases so the number of possible connected routes for a joining the dots exercise will also increase. Are all possible combinations of trees connected by straight lines to be considered a hedge?
3. There has to be more than that the trees are part of a linear feature defined by the exercise discussed above to constitute a hedge. Originally hedges were barriers to stock, and even when hedges became a feature of gardens a dense interlocking canopy would be a normal feature. Part 2A of the Trees Act addresses high trees which form a severe obstruction to sunlight or views. Severe obstruction indicates an essential feature of a hedge is that the canopies of the components are interlocked to form a closed barrier.
4. The most northerly tree of the western group, T12, is some distance away from the other four trees in the group - Mr Goodbury estimated by more than 5 m. The relative isolation of T12 is clearly depicted in both the plan prepared by Mr Goodbury and in the sketch included in the application. Both diagrams are plan views and do not provide information about the variation in the elevation of the ground surface at the planting sites. The ground elevation at T12 is considerably higher than for the other four trees in the group. The canopy of T12 does not overlap with that of any other crepe myrtles. The planting plan prepared by the landscape architect shows no indication that planting of any additional trees between T12 and the rest of the western group was intended.
5. I consider that T12 was, when planted, a single isolated individual, and has remained so subsequently. It therefore cannot be part of a hedge, and thus there is no power for the Court to make any orders for the pruning of T12.
6. Trees T8- 11 are distributed in a cluster. Moore SC (as he then was) and Hewitt AC in Wisdom v Payn considered, at [45], that: 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.
7. I consider that a disinterested observer of trees T8 - 11 would not see them as being part of a linear structure. The artificial exercise of drawing straight lines between the trees would not, in my opinion, persuade a lay observer to perceive the trees as forming a hedge. This accords with the conclusions not only in Wisdom v Payn, but also those in Maynard v Mobbs [2011] NSWLEC 1416 at [20] and McIntosh v Humphrey [2015] NSWLEC 1225 at [17] where the importance of how the grouping of trees was perceived by a casual observer was stressed.
8. Trees T8 - T11 thus do not constitute a hedge so there is no power to make any orders in regard to pruning of these trees.
9. I note that in Salisbury v Harrison [2011] NSWLEC 1069 the Commissioners found that a group of three pear trees, planted in a triangular arrangement, was a hedge. The Commissioners accepted the submission of counsel for the applicant in that matter at [15]: In this regard, we find both the group of Pears and the row of Viburnums to be two separate hedges for the purpose of the Act. We accept Dr Berveling's submission that s 14A requires there only be two trees to invoke the jurisdiction as any two trees planted side by side are in a linear arrangement, therefore an additional tree adjacent to any other tree in that group can be part of that hedge.
10. Mr Ryan Brown drew my attention to this judgement to support his case that trees T8 - 12 formed a hedge. However, the lay observer of a group of trees, in my opinion, would require an overall linear arrangement to perceive the group of trees as a hedge. As discussed in Wisdom v Payn at [45] the 'ordinary language understanding of hedge' is more appropriate than the forced artificiality resulting from the drawing of straight lines between trees in some sort of clump arrangement. While two trees, if they had an interlocking dense canopy could form a hedge, a clump of more than two trees without a dominant linear axis would not, in my opinion, be perceived as a hedge.
11. As Trees T8 - T11 do not form a hedge it follows that there is no power for the Court to require pruning of the trees so the application in relation to those trees must be dismissed.

Trees T1 - T7.

1. Deciding whether all or any of the trees T1 -T7 form a hedge is a more difficult task.
2. The plan (reproduced at [21] above) would appear to depict a linear arrangement of trees, with canopies which overlap. An observer of the plan could readily assume that it showed a hedge.
3. The respondents argued strongly that not only was it not their intention to plant a hedge, but that the line of trees would not be perceived as such.
4. The trees planted in a series of planter beds stepping down alongside a high wall between the respondents' property and that of their neighbour's to the east. The photograph below, reproduced from annexure X of Mr Goodman's affidavit shows the beds and the newly planted crepe myrtles in 2008. Behind the crepe myrtles, and with canopies immediately against the wall, is a row of Juniperus keteleeri. The junipers are identified in the landscape design drawing (page 2 of Annexure A to Mr Goodbury's affidavit) as a hedge.
5. The appearance of the planters and the wall in 2013 is shown in the photograph below (from Exhibit 1):
6. The crepe myrtles have grown and display the characteristic form of a short trunk with the crown having a vase shape with a tendency for the lower branches to become pendulous. A number of branches extend beyond the wall to the east. According to Mr Goodbury, his neighbour has raised no objections to this.
7. The applicant raises no issues in regard to the Juniperus. However, although it is designated as hedge on the landscape design, I am uncertain whether, on their own, the junipers would be perceived by a casual observer as forming a hedge. However, do the crepe myrtles, alone or in conjunction with the junipers, constitute a hedge?
8. The respondents say there is not a hedge; not only was there no intention to form a hedge but the spacing between the crepe myrtles is irregular and they are planted at varying distances from the wall.
9. In Wisdom v Payn the Commissioners stated at [45]: 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.
10. The planter beds are narrow. While the trees are not planted with military precision the variation in position both longitudinally and laterally is subtle and there is a degree of regularity in their arrangement. Although the trees are not in a perfectly straight line I doubt that a casual observer's perception of the trees would be that they are a purely random planting. Rather they would be perceived as being in a linear arrangement.
11. One matter which might argue against regarding the crepe myrtle is forming a hedge is that the trees have a clean trunk raising the canopy 1 to 2 m above ground level. However the Commissioners in Wisdom v Payn contemplated at [46] 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.
12. This suggests that continuity of dense canopy almost to ground level, although a feature of many managed hedges, is not an essential prerequisite for definition of a hedge so that a line of trees can be considered to form a hedge.
13. Fakes C in Maynard v Mobbs at [20] suggested that in deciding whether a hedge is present: viewing the spacing and arrangement of the trees at ground level from a respondent's land assists in this determination. but did not say that the view from the respondent's property is determinative. It is one factor to consider.
14. From the applicant's property, and particularly from the nominated viewpoints, it is not possible to see the trunks and the view of trees T1 - 7 is of interlocking canopies. As the trees are arranged in a linear fashion an observer could perceive the canopies as forming the upper part of a tall hedge.
15. I would therefore consider that trees T1 - T7 constitute a hedge thus passing the hurdle to allow assessment of the impacts on the view from the applicant's property.
16. The Court must be satisfied that the requirements of s 14E(2) are met - being that: 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, and (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.
17. The use of 'are' in s14E(2)(a)(ii) means that at the time an application is made the alleged severe obstruction is occurring; the provision cannot be used to create a desired view, but rather to restore or partially restore of view which had been enjoyed previously from the applicant's property. In this case there was a dispute between the parties as to whether the view now sought had been enjoyed in the past.
18. When the applicant purchased his property, the downhill block, where the respondents' dwelling is now situated, was vacant, with no building. Photographs in Exhibit A show that towards the eastern side of the block there was situated a large Norfolk Island pine (Araucaria heterophylla) within the footprint of the current dwelling on the block. At some time prior to the taking of photographs the lower branches of the tree had been removed, but the photograph shows re-sprouting. Mr Richard Brown expressed his understanding that the removal of the lower branches had been so as to remove obstructions to the view from what is now his house.
19. The respondents argued that if the pine had not been removed, which was necessary to permit the construction of the house, the resprouting would by now have grown to such an extent as to obscure the view from the applicant's house. This is speculation, but even if regrowth had occurred, the vertical separation between the whorls of branches would have been such that any obstruction would not have reached the severe category.
20. I am satisfied that view that Mr Richard Brown seeks to restore was enjoyed by him, probably up until 2013 when the crepe myrtles first became visible from his property
21. There was considerable disagreement between the parties as to how the view should be defined and assessed.
22. The respondents urged me to follow McKenzie v Selwood [2017] NSWLEC 1031 at [15] and assess the views available from the whole of the applicant's property. The viewpoints nominated by the applicant were on the ground floor and by the pool. The respondents argued that there would be extensive uninterrupted views available from the first floor. I accept this will be the case, but the applicant advised that the rooms on the first floor were bedrooms and a TV room, and were not used for entertaining. The living and entertaining areas were on the ground floor. The availability of the first floor view requires consideration in the overall assessment, but the value to the applicant of the nominated views is also acknowledged.
23. The interpretation of a view discussed in Haindl v Daisch [2011] NSWLEC 1145 at [26] has been applied frequently: However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
24. The respondents, in their assessment of the degree of view obstruction by the crepe myrtles, took the widest possible field of view into account as the potential view. The wide views of the sky and the broader surroundings are not to be neglected in assessment but it was Mr Richard Brown's submission that his house had been designed to capture views to the south, in particular of the marked channel and across the estuary to the Royal National Park. Mr Richard Brown drew particular attention to the views (now obscured) of boats moving in the channel, and of moored boats closer to the shore. From Exhibit B. Photograph taken in Winter 2017. Through the leafless branches of T8-12, which do not form a hedge the channel markers and moored boats can be made out. (The arrows and labels have been inserted by the Court.)
25. While the field covered by the projection over the view corridor defined by the applicant's house is less than 180° it is still a fairly broad swath. I do not consider that giving greater weight to views in this corridor while not ignoring wider lateral views completely constitutes excessive view slicing such as to offend against the opinion expressed in Haindl v Daisch at [63].
26. However, the obstruction, severe or otherwise, of the view particularly valued by Mr Richard Brown, is due to the trees T8 - 12 which I have found do not form a hedge. It is only the views obstructed by Trees T1 to 7 which I have found to constitute a hedge which can be assessed under s 14E (2) (a)(ii).
27. The appearance of the view affected by trees T1 -7 changes with the state of the tide. The full width view of Port Hacking is not always of an uninterrupted water body; at low tide sand flats are exposed. The shallow nature of the estuary south of the channel means that boat traffic in this area will be absent, or passage restricted to relatively short periods either side of high water.
28. The viewpoints nominated by the applicant are numbered V1 - V7 on the diagram reproduced at [21] above. They run clockwise from V1. V1, V5, V6 and V7 are inside the house, V2 and V4 are on the outside terrace and V3 is on the pool deck. The respondents suggested that it was not appropriate to consider V3, as it was not a view from the dwelling. However, the position of the viewpoint in relation both to the pool and the house is not dissimilar to that shown in figure 9 (at [124]) in Haindl v Daisch which the Commissioners considered as one of the viewpoints relevant in that matter.
29. In considering whether views are obstructed and the significance of the views the Court is regularly taken into account the planning principle introduced by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140 ('Tenacity'). The planning principle is expressed in four steps (at [26] - [29]); the fourth step is relevant to planning considerations but the first three are applicable in tree matters: 26. The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
30. The first step in Tenacity at [26] is the assessment of the view affected. In the coastal context, water views are more highly valued than land views. Iconic views are more highly valued than views lacking icons. The examples of icons given in Tenacity include only one of the natural environment - North Head. There is no comprehensive list of icons, nor objective criteria for identification and opinions will differ as to what aspects of views should be given icon status. The applicant suggested that the views of Port Hacking were iconic. I agree that it is a very fine view, but it is not one generally considered to be among the list of icons. Views are said to be both valued and valuable. Mr Richard Brown valued the views because of the enjoyment and interest gained from them; he was also concerned that obstruction of these views could lead to a financial cost if the property were to be sold - in this respect the views were valuable in monetary terms.
31. The second step in Tenacity at [27] requires consideration from where the views are obtained and suggests the protection of views across side boundaries and from sitting positions will be harder to protect. In this instance, although the respondent argued that side views albeit interrupted by a variety of obstructions, were available, the applicant's prime concerns were focused on the views to the south and side views were of lesser relevance.
32. The third step in Tenacity at [28] suggest it is not useful to assess view loss quantitatively but rather on a scale ranging from negligible to devastating. The Trees Act (14E(2)(a)(ii)) requires that a view be severely obstructed before the Court can take action. However, determining where the transition from moderate to severe occurs is one which necessarily is both qualitative and subjective, and will involve comparison with other examples which have been evaluated by the Court.
33. The applicant drew attention to the case of Hough v Rettenmaier [2010] NSWLEC 1354 where view obstruction by bamboos was determined to be severe. That case involved properties not far distant from those in the present case, and also involved views of Port Hacking. The respondents agreed that the images included in the judgement for that case clearly showed severe obstruction, but argued that the degree of obstruction was much greater than that by the crepe myrtles involved in the present matter.
34. Turning to the nominated views, and considering the obstruction caused by trees T1 - T7 (and in most cases predominantly by the obstruction caused by T1 and T2, which are in the foreground and to a large extent obscure the more southern trees).
35. Location V1 is in the lounge area, where the furniture is arranged for viewing the television mounted on the side wall. The respondents argued that little weight should be given to view loss from this position given that users would be focused on the television and not the view. However, the television will not be on constantly, and additionally the lounge is not fixed in position so could presumably be moved if the area was being utilised for entertainment. The respondent argued that in any event the view loss either from a sitting or standing position would be minor in summer (when the trees are in leaf) and negligible in winter (when the trees are leafless).
36. Although the view through winter branches will be less obstructed than that in summer, I would consider the obstruction more than negligible, but given the proportion of the total view affected by T1 - T7, the obstruction in both summer and winter is minor. The extent of obstruction to the view in both the horizontal and vertical planes is substantially less than 50%.
37. View V2 is from the external terrace within the barbecue area. The degree of obstruction is similar to that from V1, and again not severe, but rather minor in both summer and winter and from sitting and standing positions.
38. View 3 is from adjacent to the pool, and at a lower level than that from V1 and V2. The degree of view obstruction is similar to that from V1 and V2 and does not approach the threshold to be regarded as severe.
39. View V4 is from the external terrace near the table and is similarly below what would be regarded as severe.
40. View V5 is from the north side of the dining table. The total field of view is more constrained, but obstruction from T1 - T7 is still limited and does not qualify as severe
41. View V6 is from the kitchen area. Tenacity at [28] suggests that views from kitchens are highly valued because people spend considerable time in the kitchen. The total field of view is less than for views V1 -V5, because of the constraints of the side walls but the obstruction horizontally and vertically from T1 - T7 is considerably less than half the total field and I would not assess it as severe.
42. View V7 is from the front door looking down the entry corridor. Mr Richard Brown stated that the design of the house provided for a relatively wide entry corridor to take advantage of the 'wow' factor of the view of Port Hacking when visitors arrive. Trees T1 and T2 do affect this view, but while the obstruction may reach the moderate stage it does not reach the high bar set by the legislation for the obstruction to be severe.
43. Even if I am wrong in determining that trees T8 - T12 do not form a hedge, the threshold for severe obstruction caused by all the trees is not met, and in the case of T8 - T12 there is a considerable part of the waterway visible above the trees.
44. Having reached the conclusion that there is no severe obstruction of the view it is unnecessary to conduct the balancing exercise required by s 14E(2)(b) or consider in detail the matters in s 14F. However, given the extensive discussion of the matters during the hearing I will briefly discuss them.
45. The respondents value the crepe myrtle for a number of reasons, both practical and aesthetic. The area around which the crepe myrtles were planted is exposed to the northern and western sun during summer. The trees provide a degree of shade which ameliorates the high temperatures which might otherwise be experienced. In winter the deciduous nature of the trees provides for greater light penetration than would evergreen trees or shrubs in the same positions and this avoids heavy shade which might otherwise promote growth of mosses on the driveway. The design of the respondents' house provides views through the house and although the trees do not form a completely dense barrier they are sufficient to provide the necessary degree of privacy. Aesthetically the crepe myrtles are attractive throughout the year - during flowering season, in autumn when the leaves change colour, and during the winter because of the coloured patterned bark and the tracery of the upper branches against the sky.
46. Of the matters raised by s14F, a number related to sunlight, or raise matters which were not contentious. Among those which did raise matters which were contentious are: Subsection (e): (e) any other relevant development consent requirements or conditions relating to the applicant's land or the land on which the trees are situated,
47. The respondents' land is burdened by covenant (a copy of which is in the application form at pages 24 - 26) which restricts the maximum height of any building on the block. There was no dispute about whether the respondents' home conformed to this restriction. The purpose of the covenant, according to the applicant, is to preserve the views from his property.
48. Mr Ryan Brown for the applicant argued strongly that the existence of the covenant meant that the respondents were 'on notice' that planting any plants which exceeded the building height would be likely to raise difficulties for them, and if they were not aware of this when they purchased the property they would have become aware from correspondence from Mr Richard Brown and from Mr Brown's solicitor (solicitor's letter of 5 February 2014 - a copy is in the application form at pages 31 and 32.)
49. The covenant refers only to the height of a building; it makes no mention of any restrictions on planting of trees or other plants. At the time the covenant was imposed there was already at least one tree on the lot (the Norfolk Island pine) which exceeded the building height limit set by the covenant.
50. Neither party produced any documentation to demonstrate that the conditions of approval for the respondent's residence included any restrictions on the nature of plants which might be planted during subsequent landscaping.
51. While the existence of the covenant could perhaps have indicated to the respondents that view obstruction was a potential matter of contention between parties there was nothing (in a legal sense) to restrict what they might plant on the land (other than restrictions on noxious species, or possibly planting species reaching more than a certain height in the vicinity of power lines). The Trees Act dealt initially only with damage from existing trees, and Part 2A of the Act did not come into effect until 2010, and applies only to trees in hedges. These provisions came into effect after the crepe myrtles had been planted. Part 2A does not prevent planting 'so as to form a hedge', but it does provide for a neighbour to initiate proceedings once certain thresholds have been reached (2.5 m height and are causing severe obstruction of views).
52. If Mr Ryan Brown's assertion that the Goodburys were 'on notice' was intended to imply some transgression on their part such a claim is ill founded.
53. Subsection (f) - (i) of s 14F can be discussed as a group as they all involve, in various ways, eological and amenity issues. (f) whether the trees have any historical, cultural, social or scientific value, (g) any contribution of the trees to the local ecosystem and biodiversity, (h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned, (i) the intrinsic value of the trees to public amenity,
54. The respondents placed weight on the inclusion of their property as in the Greenweb core of the Sutherland Shire Council's Greenweb Strategy. The Greenweb Strategy is an important component of the Council's approach to protection and management of biodiversity across the Shire. However, the object of the strategy is a conservation of native biodiversity. This is not to deny that some native species may utilise exotic species for a range of purposes (including provision of food, nest sites, shelter sites and continuity of cover providing corridors) but the planting of non-native plants is not the objective of the Greenweb Strategy. While the Goodbury's spoke of occurrences of possums in the crepe myrtles, which is a benefit, invocation of the Greenweb Strategy does not raise the importance of the trees to a higher level.
55. Subsection (k) is of particular relevance: (k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,
56. Mr Goodbury included in Exhibit 1 extracts of publications by Professor E F Gilman of the University of Florida dealing with pruning trees including of crepe myrtles. Professor Gilman is a well-known authority on the pruning of amenity trees and his publications are widely cited.
57. To achieve the height sought by the applicant would require initial heavy pruning followed by frequent removal of sprouts. This would involve either topping, which is generally not recommended, or pollarding. Pollarding is a very old technique which was practised on a wide range of deciduous trees in Europe from mediaeval times onwards. Pollarding involves cutting stems, generally up to 3 years old, (topping may include cutting of older larger stems). After the initial cutting, re-sprouting occurs and the sprouts will need to be removed, probably annually. Over time a pollard head is formed - a swollen end of the stem from which sprouts emerge.
58. Both topping and pollarding result in the loss of the original form of the tree. The sprouts which form generally grow vertically upwards. The large number of sprouts which develop may have the opposite effect to that which the applicant seeks. The dense upright stems may form a much more dense barrier to views than the current canopy.
59. Mr Rennie (Exhibit C) states that the crepe myrtles will regrow vigorously after pruning, but he does not address the changed structure of the regrowth canopy. He also suggests that the best results will be obtained by starting the process on relatively young plants; the plants in question were planted 10 years ago and at that time they were probably 2 to 3 years old. The plants this may be too old to achieve the best results, although this is not discussed by Mr Rennie.
60. The respondents do not wish to so drastically alter the shape and appearance of the plants which would substantially change the character of the trees from their current state.
61. Mr Ryan Brown, during the hearing, stated that although the orders sought did not seek removal of the trees, if the respondents did not wish to alter the shape of the trees but were prepared to remove them, then the applicant would be prepared to pay for replacement with more appropriate species. The respondents made no comment in response to this offer. Subsection (l) (l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,
62. The trees are valued by the respondent for their contribution to privacy and they are a key feature of the landscape and garden design. They provide protection from the sun and add to the amenity of the entry to the respondent's property. Subsection (m) (m) anything, other than the trees, that has contributed, or is contributing, to the obstruction…
63. There are other structures and plants which impinge on total views from the applicant's property (see the plan at [21] above) but not on the main view which is most valued by the applicant. Subsection (p) (p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves
64. Crepe myrtle is deciduous, losing leaves in autumn with new leaves appearing in spring. The respondents suggested that on average there would be six months periods without leaves, allowing for greater filtered views through the stems in winter. There will be variation, depending on climate conditions, between years in the length of the leafless phase, and I consider that there will be years when the leafless phase will be less, by up to more than a month, than six months. Subsections (q) and (r). (q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view, (r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed
65. These matters have been discussed earlier. In my assessment the proportion of the views of Port Hacking which are obstructed by the crepe myrtles considered to form a hedge (T1 - T7) is, at the highest, moderate and is mostly minor.

Orders

1. In consequence of all the above the Court orders: 1. The application is dismissed.

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Acting Commissioner Adam

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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: 26 April 2018