Mr and Mrs Burns, the applicants, occupied their property in Mount Warrigal in the Illawarra region, in 1998, while the respondent, Mr Burkett, purchased and occupied his property in 2011. The parties share an east - west rear boundary, and the applicants' land is south of the respondent's property.
In about 2006, the prior owner of the respondent's property planted a row of Photinia x fraseri 'Red Robin' (Red Tip Photinia) (the trees) along the length of his rear boundary. Mrs Burns submitted that the trees were pruned by the prior owner of the respondent's property once they grew tall.
Mr and Mrs Burns attached an array of photographs to their application. Each photographs included a date, and Mr Burkett did not dispute their veracity. A photograph dated 1 March 2013 displayed broad views of Lake Illawarra and the distant escarpment gained above the roofline of the respondent's dwelling. Views were partially restricted by the applicants' Grevillea bushes to the east and by the higher roofline of the dwelling of the respondent's west side neighbour. A photograph dated 29 July 2017 showed that the hedge had grown to a height above 4 m, heavily obstructing the applicants' desired view.
At Question 30 of the Tree Dispute Claim Details (Form G), with respect to efforts made to reach agreement, the applicants note that after their Solicitor, Mr Hanna of Hanna Lawyers, sent letters to the respondent on 22 August 2017, 3 October 2017 and 31 October 2017.
The letters from Hanna Lawyers demanded pruning of the trees by the respondent at a height of 2.5 m to restore the applicants' view, subsequent maintenance of the hedge by the respondent at a height below 2.7 m, and also required Mr Burkett to enter into a signed legal agreement to that effect. The letter of 31 October 2017 threatened the commencement of legal action under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), should the respondent not comply.
Mr Burkett pruned the hedge to restore the applicants' view and sent a letter acknowledging completion of the pruning to Hanna Lawyers on 3 November 2017. In the letter, the respondent said, "As I have done what was required, I will not sign any further documents".
A photograph dated 3 March 2020 showed that the hedge had grown to an average height of about 3.8 m, obstructing the applicants' view of Lake Illawarra, though the applicants' escarpment views were retained. Hanna Lawyers wrote to Mr Burkett on 28 April 2020, again demanding pruning and subsequent maintenance of the hedge by the respondent at a height of 2.5 - 2.7 m and requesting that Mr Burkett enter into an agreement with the applicants for the "continued maintenance of your hedges'".
This letter of 28 April 2020 put Mr Burkett on notice that should he not prune the hedge to 2.5 m within 21 days and subsequently maintain the hedge below 2.7 m, an application under s 14C of the Trees Act would be filed with the Court. The letter advised Mr Burkett that failure to enter into a legal agreement to maintain the hedge would also "result in the commencement of proceedings against you, regardless of whether you comply with the notice above" (for pruning within 21 days). Further, the letter noted that such application made under the Trees Act would include "an application to the Court for a costs order against you".
On 18 May 2020, Mr Burkett advised Hanna Lawyers that he had pruned the hedge to 2.5 m as requested but that under advice, he would not sign a maintenance agreement. A photograph in Form G, dated 18 May 2020, shows that the hedge had been pruned to a height of about 2.5 m, with all desired views and about half of the respondent's roof exposed to the applicants.
Mr and Mrs Burns claimed, at Question 30 of Form G, that "From the period of 2020 to 2022, the Respondent failed to maintain the hedges" but a photograph dated 25 January 2021 shows that while the hedge had grown to a height of about 3 m, all the applicants' desired views of Lake Illawarra and the distant escarpment remained unobstructed and available to the applicants, along with about the top 25% of the respondent's roof.
The most recent photographs, dated 19 June 2022, which appeared to be taken from a lower vantage closer to the hedge, showed the hedge at an average height of about 3.75 m, but there were many gaps between wispy growth in the hedge's top 500mm, through which impaired but reasonable views of Lake Illawarra remained available.
Where trees in neighbouring properties also obstructed both water and escarpment views at both the eastern and western edges of the hedge, it appeared that the hedge was left a bit taller, but entire escarpment views remained available to Mr and Mrs Burns above the middle section of the hedge, where the applicants' views were unobstructed by trees in neighbouring properties.
As their desired water view was again obstructed, Mr and Mrs Burns submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees Act, seeking the following (summarised) orders:
"Within 30 days of the date of these orders, the respondent shall trim the hedge along his property's southern rear boundary line (the hedge) down to a height of no more than 2.5 metres (m), so as not to obstruct the applicants' northerly views. This hedge height shall be uniform with the roof guttering of the respondent's dwelling.
The respondent shall prevent the hedge from growing above a height of 2.7 m, so as not to obstruct the applicant's view from their property.
Should the hedge reach a height of 2.7 m, the respondent must prune the hedge to a height of 2.5 m.
The respondent is solely responsible for the cost of works required to satisfy Orders 1, 2 and 3.
The respondent is to pay the applicant's legal costs on an indemnity basis."
[2]
Onsite hearing: observations and submissions
The hearing took place onsite, with both parties in attendance and Mr Hanna representing the applicants. The trees had been planted with close and regular spacings and were growing in an uninterrupted row along the respondent's side of the common boundary.
The trees had been pruned in December 2022 to a height below 2.7 m. Mr Burkett advised that he had completed this pruning in response to a further letter from Hanna Lawyers.
For the claim of severe obstruction of views from a dwelling, the applicants nominated viewing point 1 (V1), from a raised rear balcony. V2 was the view from the back yard, while V3, V4, and V5 are from windows of rooms which are directly south of and linked to the rear balcony. The applicants note that "Once the hedges obstruct [V1], the 3 interior viewing points (V3, V4, and V5) are obstructed in an identical manner".
All viewing locations face towards the north and the applicants' view is gained over the roof of the respondent's dwelling. As a result of the trees having been pruned in December 2022, much of the respondent's roof was exposed and the trees did not obstruct the applicants' desired views.
Mr Burkett submitted that his roof is the primary obstruction to the applicants' views, and that he valued the privacy that the trees afforded him in his rear yard. The respondent submitted that, consequently, there were no additional views gained by Mr and Mrs Burns, when the trees were lower than the peak of his roofline.
[3]
Jurisdictional requirements
The application is made under Pt 2A of the Trees Act. Part 2A provides a limited jurisdiction and does not assume one should have a right to sunlight or views. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to windows of a dwelling, or of views from the applicants' dwelling. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicants.
Section 14A(1) states:
(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).
Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this Part applies). The trees must be situated on adjoining land.
Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located.
Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
Section 14E addresses matters of which Court must be satisfied before making an order, as follows:
(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, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
Section 14E(2) of the Trees Act is particularly significant. Section 14E(2) states:
(2) The Court must not make an order under this Part unless it is satisfied:
(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.
If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.
[4]
Do the trees form a hedge?
The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
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).
The trees height had been pruned in December 2022 to about 2.6 m and they were beginning to develop new growth. The respondent accepted that they had been planted so as to form a hedge, and they assumed the appearance of a hedge. Therefore, I am satisfied that s 14A(1) of the Trees Act is engaged.
Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:
(a) sunlight to a window of a dwelling situated on the land, or
(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.
[5]
Did the applicant make a reasonable effort to reach agreement?
Section 14E(1)(a) of the Trees Act requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The applicants provided a log of correspondence between Hanna Lawyers and the respondent, accompanied by copies of letters and emails, which provides satisfactory evidence to engage s 14E(1)(a) of the Trees Act.
I am also satisfied that the applicant has given notice of the application in accordance with s 14C, such that s 14E(1)(b) of the Trees Act has been engaged.
[6]
Are the obstructions of views severe?
The next step is to assess the severity of views from the applicants' dwelling as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a)(ii) 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.
[7]
Obstruction of views from a dwelling
The trees were located about 11 m north of the applicants' dwelling beyond a downward sloping lawn and garden. As the jurisdiction applies only to "a view from a dwelling situated on the applicant's land", V2 from the rear yard was not considered.
From any of the other nominated viewing spots (V1 and V3 - V5) along the north side of the Burns' dwelling, views of Lake Illawarra and the distant escarpment were available, gained above the roofline of the respondent's dwelling. These are the views that the applicants desire and wish to retain, and the respondent's hedge was sufficiently short that it caused no obstruction to these views.
In Tooth v McCombie [2011] NSWLEC 1004 ("Tooth"), Fakes C considered a similar situation where a hedge was pruned prior to the final hearing. At pars [14]-[18], Commissioner Fakes said:
"[14] The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.
[15] Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders.
[16] Whilst there may have been jurisdiction at the time the application was made, that is, the trees may have severely obstructed a view from the applicants' dwelling, the site inspection at the hearing clearly shows there is no obstruction of any view caused by any of the trees subject to the application.
[17] While the evidence in the application must be considered, the Court's determination of these matters is substantially based on the facts present at the time of the hearing.
[18] Therefore the test in s 14E(2)(a)(ii) is not satisfied and the Court has no jurisdiction to make an order under Part 2A. This includes any order for the future maintenance of the trees."
Consequently, I am not satisfied that the hedge is obstructing views from the applicants' dwelling, and therefore s 14E(2)(a)(ii) is not engaged.
Mr Hanna, whilst acknowledging that Mr Burkett promptly pruned the trees after initially being put on notice in 2017, submitted that Mr Burkett then left the trees unmaintained such that by March 2020, the trees had regrown to almost 4 m tall and were again obstructing the Burns' view. Mr Hanna thus claimed that orders for pruning were appropriate, because in the absence of orders being made, the hedge will again grow to a height where it obstructs the applicants' views.
Mr Hanna also noted that confidential recent correspondence between the parties, initiated by him with the intention of avoiding the final hearing, was likely to have precipitated the pruning of December 2022.
There is a discrete subset of cases in which the Court has applied an alternative interpretation of 'are' to that found in Tooth at [14], as detailed in Steber v Job [2019] NSWLEC 1308 ("Steber"). In Steber, at [41] - [44], Galwey AC wrote the following commentary:
"[41] Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') landowner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a).
[42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order.
[43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case.
[44] The Stebers argued that Ms Job has demonstrated through her actions, or lack of action, that she cannot, or is not willing to, prevent her bamboo growing and obstructing their view. I accept this to be the case. Ms Job initially responded to the Stebers' request to restore their view with promises to prune the bamboo. Only minor pruning was done. Ms Job stated that she was unable to undertake the pruning herself, and she had great difficulty finding someone to do it. She submitted that contractors were put off by the heat during summer. This does not explain the two years it appears to have taken for adequate pruning to finally be done."
While many applicants who find that the respondent's hedge has been pruned prior to the final hearing may prefer the interpretation of Steber to be applied, I am not satisfied that it is warranted here, for the following reasons;
1. Firstly, as I noted above at [40], Mr Hanna acknowledged that his confidential recent correspondence to the respondent was likely to have precipitated the pruning of December 2022. Keen to expand on this, Mr Burkett submitted that Mr Hanna's correspondence contained an offer of withdrawal of Hanna Lawyer's proposed order for legal and associated costs on the proviso that Mr Burkett promptly prune the hedge. As he had done in the past, the respondent complied with this request. I am not satisfied that Mr Burkett had sufficient familiarity with the Trees Act to attempt to manipulate the situation towards a particular outcome.
2. Secondly, though it appears that the trees grew steadily after Mr Burkett's occupation and were obstructing the applicants' desired views by 2017, Mr Burkett pruned the hedge relatively promptly upon receiving initial notification and demands from Nixon Hanna in August to October 2017, on behalf of the applicants.
3. Thirdly, though the Burns' claimed at Question 30 of their application that "From the period of 2020 to 2022, the Respondent failed to maintain the hedges", this is not supported by the applicants' evidence. Though views appeared heavily obstructed by the hedge in the photograph of March 2020, in response to Nixon Hanna's subsequent letter of demand for pruning in April 2020, Mr Burkett again pruned the hedge, this time within 21 days, as requested.
4. The applicants' photograph from 25 January 2021 showed that the hedge had grown to a height of about 3 m, but all the applicants' desired views of Lake Illawarra and the distant escarpment remained unobstructed and available, along with about the top 25% of the respondent's roof.
5. Although the applicants may have preferred that the hedge be maintained no higher than 2.7 m, because about the top 25% of the respondent's roof protruded above the hedge with the trees at a height of 3 m, the applicants' requirement that the trees be kept below 2.7 m is unreasonable. Objectively, the view available with the trees at 3 m or slightly taller may be considered superior to the view available when the trees' height was less than 2.7 m, because the hedge largely blocks and softens the relatively harsh visual impact of the respondent's roof, without impinging on the desired water and escarpment views.
6. Even where the trees were about 3.75 m tall in the photograph of June 2021, there were sufficient filtered water views available between the trees' wispy growth in the hedge's top 500mm, that obstruction of views may not be considered severe.
[8]
Conclusion
The evidence shows that Mr Burkett responded to each demand for pruning relatively promptly, notwithstanding that he appeared unwilling to initiate such works. There was no onus on the respondent to enter into a legal maintenance agreement with the applicants, regardless of Hanna Lawyers' claim, in their letter to Mr Burkett of 28 April 2020, "that your recent actions in failing to monitor and trim the hedges suggest you have a complete disregard for the law, being the Trees (Disputes Between Neighbours) Act 2006". Any reasonable person would likely have resisted such an agreement, regardless of such coercion.
Therefore, the determinative circumstances in this case are quite dissimilar to Steber, so the usual interpretation shall apply, as per Tooth. Consequently, I find no obstruction of the applicants' desired views as a result of the hedge, thus s 14E(2)(a) of the Trees Act is not engaged, and I have no powers to make orders.
Had I alternatively determined that the obstruction of views from the dwelling, as a consequence of any or all of the trees in the hedge to constitute a severe obstruction, thus engaging s 14E(2)(a), the Trees Act requires me to consider the balancing of interests in s 14E(2)(b). This states:
14E Matters of which Court must be satisfied before making an order
…
(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.
In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F of the Trees Act is required. Section 14F(l) considers, amongst other elements, the contribution of the trees to privacy which Mr Burkett considered to be important in his back yard.
[9]
Orders
The orders of the Court are:
1. The application is refused.
[10]
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Decision last updated: 29 March 2023