Solicitors:
Applicant: Stacks Law Firm
Respondent: Barraclough Jones & Associates
File Number(s): 254789 of 2016
[2]
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: The applicant, Mr Catlin, owns a property in Hallidays Point. He contends that 15 trees growing on Ms King's (the first respondent) property severely obstruct views from his dwelling.
Consequently Mr Catlin has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and maintenance of the trees to 2.5m and removal of all palms.
Ms King rejects this proposition on a number of grounds including jurisdiction, reasonableness of the proposed orders and the nature and value of the garden.
In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied.
The first of these is whether the trees are trees to which the Part applies.
Section 14A(1) states that Part 2A applies only to groups of two or more trees planted so as to form a hedge and which rise to a height of at least 2.5m above natural ground level.
There are 15 trees nominated in the application claim form. While the species identification in the claim form is inaccurate, the relative location of the trees on the diagram/marked-up aerial photograph in the claim form denotes the relevant trees. There are more trees in the respondents' backyard than nominated in the application.
The parties differ in their recollection of when the trees were planted.
Table 1 below provides the list of trees, the approximate planting dates suggested by each party, and approximate spacing between trees.
Table 1 - contested trees, approximate planting dates, spacing
Tree number Species (as identified on site) Planting date - Planting date - respondent Approx. spacing from previous tree (m)
Applicant (from claim form)
1 Callistemon sp Pre-1999 1993 -
2 Melaleuca sp Pre-1999 1993 2
3 Callistemon salignus Pre-1999 1993 5
4 Strelitzia sp 2014 2010 2-3
5 Acer negundo 2007 2006 4
6 Golden Cane Palm 2013 2011 5+
7 Bangalow Palm 2005 2005 1
8 Callistemon sp Pre-1999 1993 4.5
9 Tibouchina sp 2005 1994 4
10 Callistemon sp 2005 1993 1.5
11 Acmena 2005 Removed 2016
12 Callistemon sp Pre-1999 2000 3.5
13 Bangalow Palm 2010 2005 4
14 Acmena sp 2005 2007 1.5
15 Cocos Palm 2010 2004 1
[3]
The Kings planted a number of trees when they purchased their property in 1993; a number of these original trees have since died or have been removed. Mr Catlin purchased his property, up slope and to the rear of the King's property in 1995. It is clear from both parties' evidence that other trees have been planted on a number of separate occasions. The wide spacing between most of the trees was observed during the on-site hearing.
Mr Fryatt, the applicant's solicitor, contends that the trees, when viewed from his client's property, form an interlocking canopy, or since pruning - several groups of interlocking canopies. This, in his submission, should be enough to satisfy the jurisdictional test that the trees are planted so as to form a hedge.
Mr Barraclough, the respondents' solicitor, relies on the wide spacing between trees, the random arrangement and the range of planting dates as proof that the trees are not trees to which the Part applies as they have not, and are not, planted so as to form a hedge.
In Johnston v Angus [2012] NSWLEC 192 Preston CJ provides a detailed analysis of the construction of subsection 14A(1)(a) of the Trees Act. At paragraph [37] His Honour states in part:
37 I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted…so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue in that state of affairs of being planted so as to form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.
Further in Johnson at [40]-[43] Preston CJ considers, amongst other things, the criteria relevant to the determination that the trees the subject of an application form a hedge, and were planted so as to form a hedge. These criteria include proximity, planting arrangement, species, relationship between species if the planting is a mixture of species, and function of the planting. Relevantly at [43], the age is relevant as a tree planted a number of years before/after other trees could not have been planted so as to form a hedge with such trees as they were not in existence.
In Wisdom v Payn [2011] NSWLEC 1012 at [45] the Commissioners state:
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 to be in a perfectly straight line, the impression that is given by the planting arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge.
I have heard and considered similar submissions to Mr Fryatt's on a number of occasions (for example Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339) and have found the argument of interlocking canopies to be insufficient in itself to meet the criteria of being 'planted so as to form a hedge'. Rather, the criteria considered in Johnson are more applicable. I am of the opinion that any one 'hedge' must be planted in a single event (see Coleman & anor v Leddy & anor [2013] NSWLEC 1094). This is not the case for the majority of the trees the subject of the application. In my view, the spacing, species choice, and range of planting dates combine to give the impression of an informal garden and not of any of the trees having been planted so as to form a hedge. Therefore I find that s 14A(1)(a) is not met and the trees are not trees to which the Part applies.
Although the Court has no jurisdiction to make orders, given the time taken to assess the impact of the trees on the views from Mr Catlin's dwelling, done in order to fully understand each party's position, it is worth noting what was observed.
The desirable element of the available view from the nominated viewing positions on Mr Catlin's rear ground floor deck, is a distant view of the water (but not shoreline) of Black Head beach and the nearby headland to the southeast of his property. The majority of the view from the rear ground floor deck is of district views of the distant hinterland and slopes of the ranges.
Consistent with all matters involving obstruction of views, the assessment process outlined in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 was used, including assessing the view available from the whole of the dwelling (see Haindl v Daisch [2011] NSWLEC 1145 at [26]).
There are unobstructed panoramic views from the upstairs deck which adjoins the principal/ more formal living area of the dwelling.
While the views from the lower deck are partly obstructed by Mrs King's trees, in particular by T5 and T8, both of which are individual specimens, the views are also obscured by intervening roofs and structures, many of which have been recently constructed. The respondents' evidence includes the plans of a two storey dwelling being constructed on the vacant lot to the east of the King property and which is likely to further obstruct Mr Catlin's view from the lower deck.
However, having found that the trees the subject of the application are not trees to which Part 2A of the Trees Act applies, the only order the Court can make is that the application is dismissed.
The Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
[4]
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Decision last updated: 16 December 2016