This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.
[2]
Background
Jason Coghlan, the Applicant, and Craig and Catherine Poppleton, the Respondents, share a boundary between their properties in Bilgola Plateau, which runs from north-west at the front to south-east at the rear.
The trees at issue are mature Nerium oleander (Oleander) (the trees), planted close to the common boundary in the Respondents' property, prior to their occupation in 1984. The Applicant submitted that when he occupied his property in 2009, extensive water views were available from his dwelling, but they had since been severely obstructed by the Oleander hedge.
The Applicant claimed to have made various unsuccessful personal requests for tree pruning to the Respondents in the past, followed by written correspondence, and unsuccessful attempts to mediate a settlement through a Community Justice Centre.
Consequently, Mr Coghlan submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), seeking the following orders:
"1. The entire hedge to be pruned on a regular basis by the owner of the land to a height that does not obstruct the view from any viewing point in the applicant's dwelling.
2. Authorise the applicant to prune the entire hedge to a certain height to prevent the obstruction of views from any viewing point in the applicant's dwelling should the hedge not be pruned or maintained at this height by the owner of the land."
The Respondents, in a statement to the Court filed on 1 November 2022, note that they prune the trees from "time to time when they become untidy and when we have the time and resources". The Respondents noted the importance of the trees to their "landscaping providing us with a lovely green outlook, privacy, and an effective windbreak from the southerlies, (and) they are on a slope holding up the bank". The Respondents also stress the trees' role in providing shelter and habitat for birds and they re-iterate that without the privacy that the trees provide, "Mr Coghlan's living area looks straight into our backyard", including a swimming pool which is used regularly.
When the application was made to the Court, the trees had grown tall and broad. The Applicant claimed they had reached a height of about 8 metres (m) and photographs in the application show obstructed water views. After being served with the application by Mr Coghlan on 1 October 2022 upon their return from a month away, the Respondents claim they advised the Applicant that they were pruning the hedge on 3 October 2022 but were told by the Applicant that it was too late for him to withdraw his application as it was already lodged.
[3]
Framework
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 a view from the Applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.
[4]
Onsite hearing: observations and submissions
Both parties were self-represented on site and the trees were inspected initially. About nine trees were planted in a sloping garden bed about 13 m long, forming a dense row. Prior to the hearing, the trees had been pruned by the Respondents, significantly reducing their height from about 8 m to heights between 3.4 and 4 m.
When assessed from all relevant areas of the Applicant's dwelling, extensive views were readily available, unobstructed by the trees. The Respondents claimed that the potential for such views had become available to the Applicant only relatively recently as a result of tree removals in more distant properties and the Applicant's removal of Leyland Cypress trees from his side of the common boundary.
[5]
Jurisdictional requirements
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].
[6]
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 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 were planted in an orderly row with fairly uniform spacings. They exceed 2.5 m in height, and thus s 14A(1) of the Trees Act is satisfied.
Section 14B states that:
14B Application to Court by affected land owner
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 applicant's 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.
Section 14E(1)(a) of the Trees Act requires the Applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The contact chronology included by the Applicant provides satisfactory evidence to engage s 14E(1)(a) of the Trees Act, and 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.
The next step is to assess the severity of the obstruction of views from the Applicant's dwelling as a consequence of any or all of the trees in the hedge.
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.
With the trees having been heavily pruned to between 3.4 and 4 m high prior to the hearing, broad ocean and district views are available for the Applicant, such that any obstruction of views as a result of the hedge is negligible.
As s 14E(2)(a) is coined in the present tense, assessment of obstruction of views from a dwelling considers the circumstances at the time of the final hearing.
The Court's interpretation is reflected below, at [78] - [80] of Wisdom v Payn [2011] NSWLEC 1012;
"[78] As a consequence, we are satisfied that that which is within the outlook from property is not so insignificant as to warrant being discounted as constituting a view for the purposes of s 14B(b) of the Act. The consequence of that finding is that we move to consider the second of the tests that require to be addressed arising from s 14B of the Act. That is the question of whether or not the interruption to the views caused by the Lilly Pilly and Brush Cherry hedge should be regarded as severe.
[79] For this assessment, it is necessary to consider the contribution, if any, that is made by each of the trees in this hedge to the interruption of these views. It is our opinion that the wording of s 14B requires us to make this assessment on a similar basis to the assessment that is required at the height of the trees - that is an assessment as at the date of the site inspection.
[80] It is appropriate, therefore, to observe that trees T 2 and T 3, the most easterly of the trees in this hedge, are described by Mr Wisdom in the diagram reproduced earlier as only having a potential to obstruct views from his property. This necessarily implies that there is no present obstruction caused by these trees. We concur with this necessary implication as each of these trees presently only just rises above the top of the metal fence and the amount of this growth is significantly low." (Emphasis added.)
In summary, as the height of the hedge had been heavily pruned prior to the hearing, obstruction of views as a result of the hedge is negligible.
Therefore, s 14E(2)(a)(ii) of the Trees Act is not satisfied, thus I have no powers to make orders, so the application must be refused.
Had I, however, determined the obstruction of views from the Applicant's dwelling to be severe, thus engaging s 14E(2)(a)(ii), the Trees Act requires me to also 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 would be required, as follows:
Section s 14F(c) considers whether the trees grew to a height of 2.5 m or more during the period that the applicants have owned or occupied the relevant land. The Applicant claimed that broad water views were available when he occupied his dwelling in 2009. The Respondents claim, however, that they have pruned the trees from "time to time" in the past, after which the trees quickly re-grew towards their mature height of about 8m. This evidence suggests that the hedge may have been taller upon the Applicant's occupation, and this raises a key issue.
Section 34 of the Interpretation Act 1987 permits reference to a limited range of extrinsic material to assist in interpreting the Trees Act. In this regard, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review').
On page 35, the Review describes the scope of the Trees Act. In part, this says:
"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".
It is relevant to note that this Court, under the jurisdiction of the Trees Act, has consistently determined that applicants are not entitled to sunlight (or a view) which was not available when they purchased their property: see Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150.
Had the obstruction of views by the hedge been deemed to be severe, the onus rests with the Applicant to provide unambiguous evidence confirming that the views that the Applicant covets were available upon his occupation.
Section 14F(j) considers any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned. I concur with the Respondents that the trees' extensive root systems would play an important role in stabilising soil on a relatively steep slope.
Section 14F(k) considers the impact any pruning would have on the trees. While regular pruning generally compromises tree health, this species is hardy and resilient, and tolerant of pruning.
Section 14F(l) considers the contribution of the tree to privacy, landscaping, garden design, heritage values or protection from sun, wind, noise, smells or smoke or the amenity of the land on which they are situated. The Respondents stress the importance of the hedge's contribution to privacy in their back yard and to their landscape, and protection from wind.
Section s 14F(m) considers anything, other than the trees, that has contributed or is contributing to the obstruction. With respect to available sight lines from the Applicant's dwelling, potential water views beyond the lower half of the hedge (closest to the swimming pool) are obstructed by houses, and the Applicant's and other neighbours' vegetation. Had the obstruction of views by the hedge been considered severe, and intervention contemplated, no pruning would have been ordered for this area of the hedge where the view was already obstructed, even in the absence of the hedge. In the remaining area, where pruning may have been ordered, a height between the current pruned height and 750mm higher would be appropriate.
[7]
Conclusions
With the trees having been heavily pruned to between 3.4 and 4 m high prior to the hearing, broad ocean and district views were available to the Applicant at the hearing, such that any obstruction of views as a result of the hedge is negligible, and thus the application is refused.
The Applicant appeared annoyed that the assessment of severity of obstruction of views as a result of the hedge was based on the circumstances at the hearing rather than prior to the trees' heavy pruning, but the use of the present tense in the language of the Trees Act at s 14(A)(1)(b) and s 14(E)(2)(a) dictates assessment on the day of the hearing. I was not satisfied that this recent pruning reflected cynicism or mischief on behalf of the Respondents.
While no re-application is possible if the Respondents prune the height of the hedge relatively regularly, if the trees remain unpruned and grow strongly, and thus conditions change, a new application may be lodged with the Court.
[8]
Orders
The orders of the Court are:
1. The application is refused.
[9]
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Decision last updated: 08 February 2023