Drummond v Malicki

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purposes of the Act?
2. There are five trees subject to this application, which, as a group, grow parallel, and close to the south-eastern boundary of the respondents' property.
3. Tree 1 is a Magnolia, Trees 2, 3 and 4 are Flowering Ash, and Tree 5 is another Magnolia, which is similar in appearance and stature to Tree 1. The Ash trees were planted in around 2013 by the prior owners of the respondents' property, which appears to coincide with the applicants' building modifications and additions. The two Magnolias were planted approximately five to ten years prior to the Flowering Ash.
4. Exploiting a relatively rapid growth rate, the Flowering Ash trees have grown slightly taller than the Magnolias, and largely subsumed them. Neither Magnolia is conspicuous from the Drummond's property. These five trees average about 6.5 metres in height, and, in conjunction, form a dense screen.
5. Mr and Mrs Drummond contend that the trees should be considered as a hedge for the purposes of the Act.
6. Section 14A(1) states: (1) This Part applies only to groups of two 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).
7. When considering what constitutes a 'hedge', the Court has generally taken a purposive approach in its interpretation of s 14A(1)(a). In Wisdom v Payn [2011] NSWLEC 1012 at [45], Senior Commissioner Moore (as his Honour was then) and Acting Commissioner Hewett 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 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."
8. In McLaren v Lewis [2011] NSWLEC 1170 (McLaren), this Court at [25] expanded on the findings in Wisdom: "In my view, apart from a linear relationship, the trees should also be relatively close to one another."
9. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the construction of this subsection. So as to satisfy this jurisdictional test, the trees must be 'planted' (that is 'set in the ground or otherwise by human agency') rather than self-sown, with the intent or purpose 'so as to form a hedge' and continue to form a hedge.
10. These five trees currently average about 6.5 metres in height, and, consistent with McLaren at [25], the trees display a linear relationship, and are relatively close to one another, having been planted about 2.5 metres apart. They are arranged and spaced in a manner that would be considered to be a hedge in any ordinary understanding of the word.
11. Though the Magnolias may have been planted as specimen trees, the Flowering Ash were clearly planted 'so as to form a hedge' and they continue to form a hedge. The Flowering Ash largely dominate the Magnolias, which barely contribute to any view obstruction.
12. Further, as the Act sets no requirements that the plants, subject to the application, must be of the same species or planted at the same time, from the evidence adduced, I am satisfied that these five trees form a hedge for the purposes of the Act, and, therefore, that s 14A(1) applies.
13. With s 14A(1) satisfied, the Court next considers s 14E(1)(a), which states: (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.
14. Copies of extensive communication between the parties was included in the application; much of it irrelevant to the Court. It does, however, reflect an increasingly acrimonious relationship between the parties which appears to primarily stem from a lack of empathy by the applicants, and their sense of entitlement with respect to their desired views. While a concerted effort to negotiate an amicable and mutually acceptable outcome is desirable before an application under this Act is made to the Court, the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur, and thus s 14E(1)(a) is deemed to be satisfied.

Obstruction of views

1. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of trees 1-5.
2. Section 14E(2)(a)(ii) states: (1) 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
3. The word 'severe' sets the bar high. This has been discussed in a number of judgments including Ball v Bahramali [2010] NSWLEC 1334.
4. During the hearing, the applicants also noted concerns about future view loss. The engagement of the jurisdiction requires the obstruction of a view to be 'severe' at the time of the hearing because of the use of the word 'are' in s 14E(2)(a)(ii). This has been discussed in Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] and at length in Granthum. Therefore, the following consideration of any obstruction of view loss is made on that basis.
5. Both the applicants', and the respondents' dwellings face towards the east, north-east and provide a similarly elevated viewing position.
6. The nominated viewing points are all on the first floor, and comprise V1, from the kitchen study and lunch bar, V2, from the inside dining area, V3 from the living area, V4 from the outdoor dining/deck, and V5 from the master bedroom and its adjacent balcony.
7. The views in contention are to the north, and relate particularly to distant water views of Pittwater.
8. The applicants contend that T1 - T5 severely obstructs their view of the water to the north, from all five nominated viewing spots. They say both sitting and standing views are obstructed. I note that the hedge does significantly obstruct part of the view to the north; the severity is influenced by where one sits or stands and the relative height of the person doing the viewing.
9. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140, and this case was cited by the respondents. The first three steps of the four step process are considered relevant to Part 2A.
10. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued.
11. 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.
12. 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.
13. In applying those principles to this matter, the view in contention is a partial view of water and the interface with the land across a side boundary. Beyond the boundary there are structures as well as other trees in the distance which also impact the desired view. Of the rooms nominated, from which the view is said to be lost, V3 and V4 are from prime living areas, and will be prioritised. From V1 and V2, kitchen and dining areas much deeper inside the dwelling, retention of sitting views is unrealistic, while views from bedroom V5 are not highly considered, given that it is not a living space.
14. Photographs provided by the applicant focus on the blocked views, mainly to the north. I agree that the hedge does obscure much of the view in this direction, however, I concur with the respondents' submission that it is only part of the overall view available from V3 and V4, and should be evaluated in that context. Further, I note that the extensive views of the bay below, plus a broad arc of forested district views from the north-east around to the south, along with the horizon, are largely unobstructed.
15. It is useful to consider the words 'a view' as used in s 14 of the Act, when contemplating the severity of any obstruction. This is considered in Haindl v Daisch [2011] NSWLEC 1145 by Senior Commissioner Moore (as his Honour was then) and Acting Commissioner Hewett 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."
16. While the applicants' access to views in an arc to the north has been significantly restricted, the vast majority of their broad views from V3 and V4 remain intact. Therefore, I consider the impact on the total view not to be severe, rather to be moderate at best. Therefore, no Court orders can be made for any interference with the hedge.
17. As s 14E(2)(a)(ii) is not met for trees 1-5, there is no need to consider the balancing of interests required by s 14E(2)(b).

Orders

1. As a consequence of the foregoing, the Court orders that the application is dismissed.

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: 31 July 2019