Curtis v Pranatajaya

Land and Environment Court (NSW)|2024-11-20

Background to the application

Westward views from Darling Point take in the Harbour Bridge to the northwest and Rushcutters Bay to the southwest, with Sydney Harbour and sails of the Opera House between. Woollahra Municipal Council (Council) recognises the value of the views to local property owners - Council prunes the fig trees along New Beach Road to maintain views over, and view corridors between, those trees.
A dispute has arisen between Darling Point neighbours John Curtis (the applicant) and Winardi Pranatajaya (the respondent) over palm trees growing on Mr Pranatajaya's property. Mr Curtis' property is to the east and upslope of Mr Pranatajaya's property. Mr Curtis claims that the palms now obstruct views he has enjoyed since purchasing his property in 1993. He claims also that the palms breach a covenant on the property title (the covenant) restricting the height of items on Mr Pranatajaya's property.
Mr Curtis seeks orders from the Court for Mr Pranatajaya to remove the trees, and an order allowing Mr Curtis' contractors to remove the trees at the respondent's cost should Mr Pranatajaya not remove them within three months. He sought a further order that the Court makes a declaration limiting the height of any plant on Mr Pranatajaya's property to the height restriction described in the covenant.
Mr Pranatajaya disputes that his palms cause a severe obstruction of views from Mr Curtis' dwelling.

The trees

The application relates to two groups of palm trees on Mr Pranatajaya's property: seven or so palms planted around the north-eastern corner of his dwelling (the northern trees) and seven or so palms planted around the south-eastern corner of his dwelling (the southern trees). At the time of making his application, Mr Curtis had only viewed the tops of the palms from his property and underestimated the number of trees in his application. At the hearing Ms Berglund clarified that Mr Curtis seeks orders for the removal of all palms around the two eastern corners of Mr Pranatajaya's dwelling. Mr Cornish had no objection to the Court considering all of the palms in these proceedings.
Both groups of trees contain palms of two species: Chrysalidocarpus lutescens (golden cane palm; syn. Dypsis lutescens) and Archontophoenix cunninghamiana (Bangalow palm). The Bangalow palms are generally single-stemmed and up to 10 metres tall, while the golden cane palms have 2-6 stems and are noticeably shorter. Fronds appear healthy and new growth indicates that the palms are in good condition. Each group is planted in an L-shape around a corner of the respondent's dwelling, with approximately four palms along the side of the dwelling in a row toward the eastern boundary, then a further three trees extending from the corner along the eastern boundary. The planting space between the dwelling and the boundaries is narrow.

Mr Curtis applied to the Court

Mr Curtis has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

Orders the Court can make

The orders sought, as clarified during the hearing, are orders the Court can make at s 14D.

Reasonable effort to reach agreement

Mr Pranatajaya does not dispute that Mr Curtis made a reasonable effort to reach agreement, nor does he dispute that Mr Curtis gave the required notice of the application: s 14E(1) of the Trees Act. Having reviewed the correspondence annexed to Mr Curtis' affidavit, I am satisfied of these jurisdictional requirements.

Issues in dispute

The issues in dispute between the parties and to be determined here are:

Does Pt 2A of the Trees Act apply to these trees? That is, are the trees planted so as to form hedges, as required at s 14A(1)(a) of the Trees Act?
Do the trees severely obstruct a view from Mr Curtis' dwelling, as required by s 14E(2)(a)(ii)? This includes consideration of whether an outdoor patio is part of the dwelling.
If those questions are answered in the positive, whether orders should be made once the trees' benefits and Mr Pranatajaya's interests in retaining the trees are weighed against Mr Curtis' interests in restoring his view: s 14E(2)(b).

When determining the final question above, and before making any orders, the Court must consider matters at s 14F of the Trees Act. If the Court makes any orders, they need not be those sought by the applicant but can be such orders as the Court thinks fit to remedy, restrain or prevent a severe view obstruction: s 14D(1).

Are the trees planted to form hedges?

In opening their submissions, both Ms Berglund and Mr Cornish remarked something along the lines of: "The situation here speaks for itself." Each case that comes before the Court has its own nuances. Onsite hearings allow the Court to see the particular issues and, indeed, let each situation speak for itself.
Part 2A of the Trees Act provides a limited jurisdiction for landowners to seek relief from sunlight and view obstruction that is caused by trees. Section 14A(1) restricts the trees that are covered by Pt 2A: 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). (2) …
The palms are all more than 2.5 metres tall. In Mr Curtis' application, the two groups of palms are referred to as the northern hedge and the southern hedge.
Ms Berglund pointed out that the palms are planted in straight rows out of necessity due to the narrow planting space between Mr Pranatajaya's dwelling and his property boundary. Ms Berglund submitted that when viewed from Mr Curtis' property, the palms' fronds form dense screens. She submitted that, for these reasons, the palms are planted so as to form hedges
Mr Cornish submitted that the palms' natural form - bare stems with fronds only at their crowns - suggests that they were not planted to form hedges. He submitted that the onus is on the applicant to demonstrate to the Court's satisfaction that the trees are planted so as to form hedges. Mr Cornish opined that the applicant has not discharged this burden of proof.
Evidence to this issue is limited to observations of the trees at the onsite hearing. In both groups, the palms are planted in relatively straight rows. Spacing between each tree is not uniform but is relatively regular and close enough to allow fronds of each plant to overlap with those of the next one, so that their crowns connect.
The Trees Act does not provide a definition of the word 'hedge', but the Court has considered on many occasions what might or might not constitute a hedge. In Wisdom v Payn [2011] NSWLEC 1012 at [45], the Court found: [45] We reject this proposition. 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 language understanding of the word, would be perceived to be a hedge.
The arrangement of the palms - straight rows with trees at reasonably regular intervals - is consistent with a hedge planting, but I'm not sure that their form would be considered hedge-like by a person walking in from the street.
In Johnson v Angus [2012] NSWLEC 192, Preston CJ found at [41]: [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.
The palms' morphology is relevant. In King v Moore [2023] NSWLEC 1654 at [8], I was reluctant to call a row of palms a hedge: [8] A palm has a single growing point at the top of its stem. While individual fronds can be removed without damage to a palm, it cannot be reduced in height. This is different to trees that can be reduced in height and otherwise shaped - picture cypress or lilly pillies. The Trees Act, perhaps intentionally, has not included a definition of the word 'hedge'. Though used in the Act as a noun, the word is also a verb - to 'hedge' a row of trees is to prune it, controlling its height, spread and form, thus forming a hedge. Palms cannot be pruned in this way - they cannot be hedged. I am aware that palms have been considered in other Pt 2A matters, but I am reluctant here to call this row of palms a hedge, even though, as Ms King pointed out, they were planted in a straight row and their fronds form a relatively continuous canopy.
Nevertheless, the Court has found rows of palms to form hedges: Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108 at [26], [29].
But as Pain J found in Black v Jeihooni (No 2) [2024] NSWLEC 13, while (at [45]) palms might form hedges, this (at [42]) "…depends very much on the particular circumstances of each case as there are a number of variables to consider" and "seeking to extrapolate from reasoning in other cases is not of much assistance in this case."
I find here that the two groups of palms on Mr Pranatajaya's property do not form hedges. Mr Curtis sees only the tops of the palms from his dwelling, and from there it is only the fronds of the palms' crowns that can be seen. To Mr Curtis, the trees in each group form a continuous canopy that is hedge-like. However, when viewed from within Mr Pranatajaya's property, or even from the service area below Mr Curtis' pool, the appearance of the palms is not hedge-like. They do not appear uniform and they do not provide the screening usually associated with a hedge. Their bare stems are as much a feature of the landscape as their fronds above are. Two photographs from Ms Mackenzie's report (Exhibit E) that show this are copied below: Plate 6 showing the northern palms and Plate 7 showing the southern palms (in the right side of the photo only - plants on the left are in another neighbouring property). Plate 6 of the Mackenzie report Plate 7 of the Mackenzie report
If the palms do not form a hedge, it seems unlikely that they were planted with the intent to form a hedge. The wording at s 14A implies the necessity for such intent: see Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28].
The palms are not planted so as to form a hedge, so they are not trees to which Pt 2A of the Trees Act applies. That is the first reason for the application's failure.

Do the trees severely obstruct a view?

The application also fails because the trees do not severely obstruct a view. The Court must not make an order to remedy, restrain or prevent a view obstruction unless it is satisfied that the trees "are severely obstructing a view from a dwelling situated on the applicant's land": s 14E(2)(a)(ii) of the Trees Act.
The word 'view' at s 14E(2)(a)(ii) refers to any view, without qualification, but the view from Mr Curtis' dwelling is noteworthy. The Court observed the view from the first floor, from where the valued elements of this expansive view - the Harbour Bridge, sails of the Opera House, the CBD, water views - are available above the tops of the palms. From here, the tops of the fig trees along New Beach Road sit just below the Harbour Bridge and CBD. According to Mr Curtis, Council maintains those trees at a height of 14.2 metres to protect these views for property owners. Although views from Mr Curtis' first floor are not obstructed by Mr Pranatajaya's palms at present, Ms Berglund submitted that the palms will soon grow into and obstruct that view: the northern trees will obstruct the view from the living area, and both groups of trees will obstruct the view from the main bedroom.
On the dwelling's ground level, the Court observed the view and its obstruction from the living area, the kitchen, and from outside the dwelling on the paved patio area and pool surrounds. Ms Berglund submitted that the Court has found such outdoor areas could be considered parts of the dwelling.
The obstructed view must be from a dwelling: 14E(2)(a)(ii). Mr Cornish submitted that the Court cannot consider views from outdoor areas such as the patio and pool surrounds. The patio, outside and on the same level as the kitchen, I will consider here as part of the dwelling as it is similar to a deck. The paved area surrounding the pool is at a lower level, down several steps from the patio area. I consider this more part of the garden and therefore not part of the dwelling.
Again, both Ms Berglund and Mr Cornish submitted that the situation speaks for itself. In his report (Exhibit 1), Mr Aspinall assessed the view from 11 locations on Mr Curtis' property: the living areas and kitchen on the dwelling's ground floor, the patio outside the kitchen, the paved area around the pool, and on the first floor the main bedroom and other areas. From most locations he found the palms caused only a negligible or minor view obstruction. He found the palms' greatest view obstruction was from the ground-floor patio, where the impact was moderate.
With the benefit of the onsite view, I find Mr Aspinall's assessment of the view obstruction is accurate. Even from the ground floor areas, including the patio, the palms do not severely obstruct a view. The fig trees on New Beach Road obstruct valued view elements including the Harbour Bridge, the Opera House and the CBD. Where palm fronds reach above the sightline to the tops of the figs, they obstruct only a small part of the sky view. Narrow views to water between the fig trees, maintained by Council, remain in places. Plate 1 from Ms Mackenzie's report, taken from the ground floor patio area, shows the fig trees along New Beach Road behind the palms, with the fig trees visible to the left and right of the palm fronds near the centre of the photo. That photo is copied below. Plate 1 from the Mackenzie report
Applying the qualitative terms used by Roseth SC in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 at [28], I consider the view obstruction caused by the palms is moderate from the patio and minor from other locations. It is not a severe obstruction of a view. This is the second reason for the application's failure.
In Unsworth v Hennessy [2024] NSWLEC 82 at [30], Chief Justice Preston considered that the use of the present continuous tense at s 14E(2)(a) of the Trees Act - "are obstructing" - can also describe a state of affairs that is going to happen in the future. And Mr Curtis is concerned of the future view obstruction - both the increasing obstruction from the ground floor, and the emerging obstruction from his first floor. I accept that the view obstruction will increase from the ground floor. I further accept that the palms may at some point severely obstruct the valued view from Mr Curtis' first floor.

Balancing of interests

However, a severe view obstruction will not be the ongoing state of affairs here; rather, it will be temporary. The palms, unlike, say, many cypress hedges that form dense screens from near ground level, have foliage, or fronds, only at their tops. As a cypress hedge grows, the extent of its screening increases in height, usually without loss of its lower screening. But as these palms grow taller, the view obstruction they cause moves upward, eventually allowing the view again beneath their fronds. This was considered in other cases involving palms: see Arnold v Persson [2022] NSWLEC 1270 at [21] and King v Moore [2023] NSWLEC 1654 at [9].
I have considered the relevant matters at s 14F of the Trees Act. The trees contribute to the landscape value of Mr Pranatajaya's property. They may have once provided some screening for privacy, preventing overlooking into Mr Pranatajaya's windows from Mr Curtis' property, but their fronds are now mostly above those sightlines.
Council was served with a copy of Mr Curtis' application. Council responded by way of written letter to the Court on 18 September 2024 (in Exhibit C). Council explained that the palms are all prescribed trees in accordance with Chapter E.3, Section E3.2.1 of the Woollahra Council Development Control Plan 2015. Therefore, Council consent is ordinarily required to prune or remove the trees. If Mr Pranatajaya applied for consent to prune the trees, Council would consider the application in accordance with the view pruning guidelines within the Woollahra Tree Management Policy. Because pruning for height reduction would disfigure the trees and would not be compatible with their retention, Council would not support pruning. Furthermore, Council would not support the removal of the palms.
To my mind, the trees' benefits, particularly their contribution to the amenity of Mr Pranatajaya's property, outweigh the temporary nature of the view obstruction that seems about to befall Mr Curtis' property. This is the third reason for the application's failure. Had I found that the palms cause a severe obstruction of a view from Mr Curtis' dwelling, I find the balancing of interests required at s 14E(2)(b) of the Trees Act would prevent the making of orders.

Conclusion

In summary, the application to remove the palms fails on three counts. Firstly, Pt 2A of the Trees Act does not apply to these trees. Secondly, they are not severely obstructing a view from Mr Curtis' property. And thirdly, reasons to avoid interfering with the trees outweigh Mr Curtis' interest in remedying and preventing the view obstruction.
I referred earlier to the covenant that restricts the height of buildings and 'ornamentation' on Mr Pranatajaya's property. Whether or not ornamentation includes plants is not clear. It is not a matter I need to consider here as I cannot make orders in these proceedings. Nevertheless, the covenant's height restriction provides some guidance to the parties on view retention, and Mr Pranatajaya seems open to mitigating this dispute between neighbours.
Mr Aspinall included in his report recommendations to restore views from Mr Curtis' dwelling while retaining amenity for both properties. He recommended removing the palms and replacing them with bamboo that could be maintained at a height of 8.6 metres. Mr Cornish submitted that, if the Court were ordering removal of the palms, any orders for replacement planting should be in line with Mr Aspinall's recommendations. The refusal of this application does not belittle the nature of the dispute, nor does it resolve it. The Court hopes that the parties find a way of reaching a suitable resolution.

Orders

The Court orders: 1. The application is refused. 2. The exhibits are returned, other than exhibit A. ………………………………. D Galwey 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: 23 December 2024

(2012) 190 LGERA 334

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