Cisneros v Cairns

The onsite hearing

1. The hearing commenced with an inspection of the trees in the respondents' rear yard. Prior conflict between the parties, including complaints by both to local police, had escalated to an extent that the applicants submitted that it would be neither "appropriate nor beneficial for either party to enter the other party's property". As this proposed arrangement may have compromised an open, transparent, fair and just hearing, Ms Cisneros, Mr Bear, solicitor for the applicants, and Mrs Cairns attended the inspections and engaged in all proceedings, while both Mr Wrigley and Mr Cairns did not enter their neighbours' properties.
2. The respondents' rear yard was heavily planted with a wide range of species, featuring trees and shrubs as individual specimens, as well as groups or rows of trees and shrubs, which formed informal screens.
3. With the arboricultural expertise I bring to the Court, it was evident that most, if not all, of the trees which the respondents claimed to be present in 2011 were older than ten years, contrary to the applicants' evidence. It was also clear from their size, form and maturity, that most of the trees which Ms Cisneros claimed were planted between 2014 and 2018, were in fact planted some years prior.
4. The Court next assembled in the applicants' upper level living room and adjacent east side veranda, where an inspection was conducted, of both the trees and the views. In the site plan included with the application, V3 was located at the northern end of this veranda, while V4 encompassed the length of the veranda, from V3 to its southern end.

The applicants' case

1. The applicants proposed the following orders: "1. The respondents take all action necessary to trim the trees forming high hedges marked T1 - T25 inclusive, in the Site plan and Tree schedule (included in the Application Claim Details), to a height not exceeding the handrail height of the verandas of their residence. 2. The respondents take all action necessary to maintain the trees forming high hedges marked T1 - T25 inclusive, in the Site plan and Tree schedule, at a height not exceeding the handrail height of the verandas of their residence. 3. The respondents take all action necessary to trim and maintain T22, in the Site plan and Tree schedule, to a height not exceeding 2.5 metres, so as not to obstruct sunlight to the applicants' property. 4. Further and in the alternative, the respondents remove the trees forming high hedges marked T1 - T25 inclusive, in the Site plan and Tree schedule, and replace them with a different species of tree."

The respondents' position

1. The respondents resist pruning of the trees to reduce their height, or removal and replacement of the trees, mainly because of the negative impact on their privacy and amenity in their backyard, and because of reduced shading from the western sun that the trees currently 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. In her affidavit, Mrs Cairns noted that "most of the other trees were planted shortly after we erected the western fence in 2011 to provide a soft screen" from the applicants' property, and shading from the western sun. Some of these trees have reached a height of about six metres above ground level.
4. Six of these trees are Syzygiums (Lilly Pilly's) of two different species, and one is a Backhousia citriodora (Lemon-scented Myrtle). Four of the Lilly Pilly's are planted next to each other in a linear form along the boundary and their canopies meet, or are close together. The southern most of these trees melds with the Lemon-scented Myrtle, also planted near the boundary, while the other two Lilly Pilly's are located nearby, roughly to the east of these five trees. All seven trees have a similar morphology.
5. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [40]-[41], Preston CJ discusses the criteria relevant to a determination that trees form a hedge, and were planted 'so as to form a hedge'. His Honour states: "40 … Being sufficiently close is relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species, the age of the tree, the health and growth of the tree, and the scale of the landscape. 41 But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. 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."
6. 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 [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."
7. 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 m, the entire 'hedge' is deemed to have satisfied the test in s 14A(1)(b).
8. Informed by these analyses, I conclude that s 14A(1) is satisfied for the hedge planted adjacent to the western boundary.
9. In contrast, the trees located near the northern boundary do not satisfy the requirements of s 14A(1), and the applicants withdrew their claim with respect to these trees during their oral submissions.
10. Section 14B 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) 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.
11. As is not uncommon with many tree disputes, negotiations between the parties have been protracted and at times unpleasant. Nonetheless, the applicants have 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. They have communicated with the respondents, requesting pruning of the trees, and attempted unsuccessfully to engage the respondents in a mediation process conducted under the guidance of a Community Justice Centre.
12. The next step is to assess the severity of the obstruction of sunlight to a window, or all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedge.
13. 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) 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.
14. The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfill. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality.
15. Thus the Act sets a high bar and one that should be understood as requiring more than moderate annoyance or inconvenience to the party be shown - De Zylva v Staas [2012] NSWLEC 1242 at [31].

View obstruction

1. The applicants submitted that their house was designed to maximise views of the ocean and the Solitary Islands, available from the east to the north, north-east. Their own trees restrict views and provide privacy to the north and north-west.
2. In her application and affidavit, Ms Cisneros emphasised the increased obstruction to views which is likely in the future. As Mrs Cairns noted in her affidavit, 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].
3. In assessing the severity of an obstruction of a view, the Court has often taken guidance from a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).
4. The first three steps of the four-step process in Tenacity are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected - water views are valued more highly than land views, and iconic views such as the Opera House, the Harbour Bridge or North Head, are particularly valued, whole views are valued more highly than partial views, and the interface between land and water is valued.
5. 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.
6. 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.
7. Though the ocean is sufficiently distant to render the view partial, and absent of land-water interface of note, any water view is normally highly valued, as is the case here. Ms Cisneros submitted that the view of the Solitary Islands was iconic, and though only one small island was visible in the far distance during the hearing, I acknowledge its value in the context of the available view.
8. The views towards the ocean, coveted by the applicants, are gained entirely across the common boundary and the respondents' property. Though taller hedge foliage partially obstructed or filtered some views from this eastern deck, standing views of both the ocean and the island were available from most positions, and sitting views from some. Noting the second step of Tenacity, "the expectation to retain side views and sitting views is often unrealistic" (at [27])
9. In respect to the assessment of severity of view obstruction, Mrs Cairns submitted the precedent of Haindl v Daisch [2011] NSWLEC 1145, where Moore SC and Hewett AC state at [26]: "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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis."
10. This deck adjoins the kitchen and dining area, from which standing views were also available, though to a lesser extent than the eastern deck. Considering the extent of the impact for the whole of the property, however, per the third step of Tenacity, the severity of obstruction of the view can be considered no higher than minor to moderate.
11. Therefore, I am not satisfied that the respondents' western hedge is severely obstructing a view from V3 and V4, and thus s 14E(2)(a)(ii) of the Act is not engaged.
12. The site plan in the application shows V1 and V2, located on a deck to the north east of the property, the construction of which was completed in 2018. Neither Ms Cisneros, nor her solicitor, took me to this area, nor pursued this claim during the hearing, notwithstanding that the onus is on the applicants to prove that their case satisfies the requirements of the Act.
13. V5 and V6 were also shown on the site plan, where a deck on the southern side of the house is proposed. No consideration of view obstruction is possible where the viewing point does not yet exist.
14. Though claims of view obstruction to downstairs windows were also included in the application, a letter from Coastal Law and Conveyancing, on behalf of Mr Bear, dated 17 December 2019, notes that "Our client does not press any allegation of loss of view to the downstairs windows".
15. The application site plan also indicated windows, for which severe obstruction of sunlight was claimed. I was not taken to any of these locations, and no sunlight obstruction claim was pursued at the hearing.
16. Even if I was wrong, and s 14E(2)(a)(ii) had been met for the hedge, there would be 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) The Court must not make an order under this Part unless it is satisfied that: … (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. Section 14F matters to be considered by the Court in this case relate particularly to privacy and sun protection which the western hedge affords the respondents, its contribution to biodiversity, as a potential source of food and habitat for native fauna, and its contribution to the natural landscape and scenic value of the land on which they are situated. Had pruning intervention with the hedge been ordered, the impact of pruning on the health or function of the hedge would also require consideration.
18. When the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if circumstances have changed since the Court determined the earlier application (Hinde v Anderson [2009] NSWLEC 1148)
19. However, it is not possible to make a further application if the circumstances have not changed (McCallum v Riordan [2011] NSWLEC 1009; Awad v Hardie (No 3) [2012] NSWLEC 1067). If the nature of the application remains the same but all that has changed is that there is further evidence to support the application, such an application cannot be successful if the new evidence is evidence that could have been available at the time of the original hearing. Further, it is not appropriate to make a second application in the hope that a different Commissioner will be appointed to hear the matter and thus might give a different decision to that made on the first application.

Conclusion

1. As s 14E(2)(a)(ii) of the Act is not satisfied, the Court has no jurisdiction to make orders under the Act.

Orders

1. The orders of the Court are: 1. The application is dismissed.

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: 27 November 2020