Brown v Sharp

The hearing

1. Both parties were self-represented at the onsite hearing, which commenced with an inspection of the respondents' trees growing near the common boundary. About 11 metres from the eastern corner is an Olea africana (African Olive) and a Cupressus sempervirens (Mediterranean Cypress). In his application, Mr Brown designated the Olive T1 and the Cypress T2, and I will adopt his numbering. They are growing only a few metres apart, though T1 is further from the fence than T2.
2. To the west of these trees is a densely planted row of Bambusa textilis 'Gracilis' (Slender Weaver's Bamboo) (T4), growing parallel, and close to the common boundary. Until recently, (T3), a Wattle, grew between the Olive and the Bamboo but it collapsed. A clump of Ghost Bamboo (T5) is located at the western end of the boundary.

Jurisdictional tests

1. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 (Granthum) 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 purposes of the Act?
2. Section 14A(1) states: (1) This Part applies only to groups of two 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. Mr Brown contends that the trees should be considered as a hedge, or a group of hedges for the purposes of the Act. Overall, the trees are quite disparate and are spread unevenly along the boundary. I will deal with them as three separate items, as occurred at the inspection.
4. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), Preston CJ provides a detailed analysis of the construction of this subsection. So as to satisfy this jurisdictional test, the trees must be 'planted' (that is 'set in the ground or otherwise by human agency') rather than self-sown, with the intent or purpose 'so as to form a hedge' and continue to form a hedge.
5. Item one comprises T1 and T2. They are both mature and have been growing on site for many decades. The Cypress was almost certainly planted, but the African Olive was probably self-sown, with its seed most likely spread by a bird. Though this species was a feature of some 19th and early 20th century garden styles, due to its propensity to seed prolifically and propagate readily, it is generally considered a weed species and is not normally available for sale. Across almost four decades experience in the horticulture industry, I have never found this species available in plant nurseries.
6. In Johnson, his Honour notes at [41]: " … Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge." In this case, the morphology, foliage and growth habit of T1 and T2 are entirely different.
7. Therefore, as one of the two trees has probably not been planted, and the extreme species dissimilarity fails to support any intent 'so as to form a hedge', s 14A(1)(a) has not been satisfied, thus there is no recourse under the Act with respect to T1 and T2.
8. Furthermore, it is not the intent of the Act to remedy hedges already severely obstructing light at the time of property purchase, as would be the case with T1 and T2, had they been deemed to be a hedge for the purposes of the Act.
9. Photographs of the trees (9.2 and 9.3) included with Mr Brown's application are annotated by captions, 'No remaining iconic views'. This infers that Mr Brown could access these views previously, but they no longer remain. This is incorrect. When Mr Brown purchased his property in December 2013, T1 and T2 were mature and no views or solar access then available to the applicant appear to have been lost in the interim. To the contrary, the height of the Cypress has been significantly reduced, with light thus increased.
10. The Interpretation Act 1987 permits reference to relevant material to assist in interpreting the Trees Act, and in this respect, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review').
11. On page 39 the Review describes the Trees Act's scope, which includes; "It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase."
12. Item two is the row of Bamboo (T4), which is growing close and parallel to the common boundary. The respondents note that they planted it "in October 2017 to provide privacy for the garden and the bottom flat." This appears to coincide with the applicants' building modifications and additions.
13. T4 is about 15 metres long and generally about 4.5 metres tall. It had previously been pruned to this height fairly regularly, but in anticipation of the hearing, maintenance was deferred, and some tall culms have emerged above this height.
14. These bamboo plants were closely planted at regular intervals in a linear configuration. They are growing higher than 2.5 metres tall, and were clearly planted 'so as to form a hedge'. Therefore, with respect to s 14A(1), T4 meets the requirements of the Act.
15. Item three is Dendrocalamus minor var. Amoneus (Ghost bamboo), designated as T5, growing at the western end of the common boundary, perhaps 18 metres from T4. It forms a large clump, a few metres wide and set back from the boundary, with tall arching culms, some of which overhang the applicant's property. It is dense, probably restricts light to a rear cottage, and, as Mr Brown contends, would drop considerable refuse.
16. There is, however, nothing about T5 that would lead one to conclude that it is a hedge. It appears to be one clumping plant, there is no sense of linear arrangement, nor can one discern any hint of intent to form a hedge through the planting of a botanical feature, somewhat isolated in the back of the garden. Further, as with T1 and T2, this Ghost Bamboo was long established when Mr Brown purchased his property. Clearly, T5 is not a hedge in terms of s 14A(1) of the Act.
17. With s 14A(1) satisfied for the Bamboo hedge (T4), the Court next considers s 14E(1)(a), which states: (1) The Court must not make an order under this part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
18. A chronology exhibiting extensive ongoing communication between the parties was included in the application. Mr Brown also attempted to organise mediation through the Community Justice System, but the respondents opted not to pursue this, as is their right.
19. While a concerted effort to negotiate an amicable and mutually acceptable outcome is desirable before an application under this Act is made to the Court, the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur. Both parties displayed goodwill during onsite proceedings, and I am satisfied that the requirements of s 14E(1)(a) have been met.

Obstruction of views

1. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of T4.
2. Section 14E(2)(a)(ii) states: (1) 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
3. The engagement of the jurisdiction requires the obstruction of a view to be 'severe' at the time of the hearing because of the use of the word 'are' in s 14E(2)(a)(ii). This has been discussed in Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] and at length in Granthum. Therefore, the following consideration of any obstruction of view loss is made on that basis.
4. Viewed from the living room of the applicant's renovated dwelling, only the unpruned unfurled bamboo culms obstruct the coast and water views, and these emergent stems are distributed relatively sparsely. Most of the hedge plants remain at a height of about 4.5 metres and do not obstruct the desired views.
5. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140. The first three steps of the four step process are considered relevant to Part 2A.
6. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued.
7. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic.
8. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
9. In applying those principles to this matter, the view in contention is an impressive broad view of Port Hacking and the interface with the land, across a side boundary. Beyond the boundary, in the middle and long distance, there are trees and structures which also impact the desired view.
10. With respect to T4, the nominated view is from a living room. The extent of the view loss is not severe, but is minor, and can be reduced to negligible upon recommencement of the maintenance previously conducted by the respondents. Therefore, s 14E(2)(a)(ii) is not satisfied, and no Court orders can be made for any interference with the hedge. Notwithstanding this, both parties to the proceedings were co-operative, and appeared likely to forge an agreement for ongoing maintenance of T4.
11. Given that s 14E(2)(a)(ii) is not met for T4, there is no need to consider the balancing of interests required by s 14E(2)(b).

Orders

1. As a consequence of the foregoing, the Court orders that the application is dismissed.

Acting 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: 20 August 2019