The framework for consideration
17The application is made under Part 2A of the Act. Section 14A(1) states:
(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).
18Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
19Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located.
20Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1).
21Of significance is s 14E(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied:
(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, and
(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.
22If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D.
Submissions s 14A
23Mr Galasso for the applicant contends that despite several trees in the planting being less than 2.5 m tall, provided that other trees are over 2.5m, the Court has jurisdiction with respect to all individual trees in the hedge whether or not they exceed 2.5m. In support of this contention he cites Wisdom v Payn [2011] NSWLEC 1012 at [66]-[68] Moore Sc and Hewett AC:
66 As a consequence, the four of the trees, T 4 through to T 7 satisfy the jurisdictional test as to height. Although trees T 2, T 3 and T 8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual.
67 For instance, if a group of two or more trees were to be planted in a linear fashion so as to form a hedge but were planted with alternating species so that every second tree was one which, at maturity, was incapable of rising at least 2.5 m above existing ground level but that the second species was so capable and would dominate or engulf the more modest tree species (bearing also in mind that vines are now deemed to be trees by virtue of s 4 of the Trees (Disputes Between Neighbours) Regulation 2007), such a planting arrangement could render Part 2A of the Act inapplicable. Such an outcome is, in our view, entirely contrary to and frustrating of the purposes for which the amendments creating Part 2A were introduced.
68 As a consequence, we are satisfied that these trees, as a complete grouping, satisfy the tests under s 14A.
24Similarly, with respect to the arrangement he cites Wisdom v Payn at [45]:
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 language understanding of the word, would be perceived to be a hedge.
25Despite the possibility of tree 11, the Giant Bird of Paradise, being self-sown and therefore not "planted" Mr Galasso contends that it too is capable of being part of the hedge by virtue of other trees planted around it. Whilst Mr Galasso cites Hendry & Anor v Olsson & Anor [2010] NSWLEC 1302 at [26]-[27] where Moore SC and Galwey AC considered they could not be satisfied that certain trees were not self-sown remnants and therefore considered those trees to be beyond the Court's jurisdiction as they did not comply with s 14A(1)(a), he considers that a self sown plant which becomes incorporated into a hedge ought to be considered as part of the hedge. He contends that it cannot have been intended by the legislators that "planted" could require that every plant in a hedge should be identified as either placed by humans or self-sown. He suggests that suckering of bamboo is an example of self-propagation and as such it would be impossible to identify the provenance of each sucker.
26Ms Duggan for the respondent contends that the application does not identify 'a hedge' to which the Court could make orders under s14D. This is because there is a gap between trees 5 and 6, three of the trees are less than 2.5m and one tree is self-seeded. She says that the Court should not reconfigure the application to solve these jurisdictional problems and if the application identifies a hedge that is not a hedge then the application should be dismissed. To support this contention she cites Blau v Levi [2010] NSWLEC 1371 at [19].
Findings s 14A
27Notwithstanding the fact that three trees are less than 2.5 m I am satisfied that that trees 1-10 and 12 form a hedge for the purpose of the Act. This is consistent with the findings in Wisdom v Payn at [45] and [66]-[68]. With respect to tree 11, whilst the plant could be self-seeded there is inconclusive evidence that it is, and in taking a purposive approach to the interpretation of the Act, in the circumstances of this matter [which I note are very different to the circumstances described in Hendry v Olsson ] I am prepared to accept that it forms part of the hedge for the purpose of the Act. Similarly, the circumstances described in Blau v Levi were very different to the arrangement of the plants in the matter presently before the Court.
28Therefore I am satisfied that trees 1-12 inclusive comprise a hedge for the purpose of the Act and satisfy the tests in s 14A. As a result I can proceed to consider the next gateway test in s 14E(2)(a)(ii).
Submissions s 14E(2)(a)(ii)
29Mr Galasso makes several submissions with respect to the severity of the loss of view caused by the trees subject to the application. With respect to the process of assessing the view loss he cites Ball v Bahramali [2010] NSWLEC 1334 at [47] where the Court states:
47 In these matters it is necessary to determine if the obstruction of a view is severe. In order to do this, several questions need to be considered. Does the hedge obstruct a view from a dwelling? What is the nature and extent of the view that would be available in the absence of the obstruction? If a view is obstructed, is it a severe obstruction? If the obstruction is found to be severe then the Court must balance, in accordance with s 14E(2)(b), the interests of the applicant in having the obstruction removed, remedied or restrained with other matters (s14F) that may suggest such actions are undesirable.
30Whilst Mr Galasso notes that over the time since the Act was amended to include Part 2A, the Court has placed less rigid reliance on the view sharing principles expounded in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 , he considers there is still some merit in applying those principles to his client's application.
31In this he contends that water views, those of the land/water interface and iconic views are valued more highly than district views. He asserts that the view of Whale Beach that is obstructed by the respondent's trees ticks all of those boxes and that the value of those views is reflected in the high median house prices in the locality. The views are seen from the principal open plan living area and, prior to the obstruction by trees 1-5, could be obtained from both sitting and standing positions in many parts of the dwelling. The views he says are severely obstructed by trees 1-5 are of parts of the beach, the breakers, the land/water interface and the northern headland particularly from V4 and V5 but also V2. He contends that if one buys a beach house at Whale Beach there is an expectation of a view of Whale Beach. He says that given the iconic and valuable nature of the views, the loss is severe in qualitative terms and a quantitative assessment is not appropriate in the circumstances.
32The other plank of Mr Galasso's submission is that the Court has jurisdiction to remedy restrain or prevent present and future (his emphasis) severe obstructions of any view from the dwelling on the applicant's property. He contends that the standing of the applicant is afforded by s 14B of the Act which provides that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of any view from a dwelling on the applicant's land if the obstruction occurs of a consequence of trees that meet the requirements in s14A. He further supports his contention by referring to the words in s 14D that enable the Court to make any orders it thinks fit to remedy, restrain or prevent a severe obstruction to any view from a dwelling on the applicant's land if the obstruction occurs of a consequence of trees that meet the requirements in s14A.
33He contends that notwithstanding the wording in s 14B and s 14D that affords the Court the power to prevent a loss of a view, to date the Court has applied a rigid interpretation of s 14E(2)(a)(ii) in that the use of the words "are severely obstructing" does not anticipate future view loss but requires that the trees must be severely obstructing a view from a dwelling at the time of the hearing. In this regard he cites the Court in Tooth v McCombie [2011] NSWLEC 1004 at [14].
34Mr Galasso considers I am wrong in my construction of s 14E(2)(a)(ii) in Tooth v McCombie and in other cases. He submits the word 'are' was intended by the legislators to convey the requirement that the trees are responsible for the obstruction whether present or future, and not that the obstruction be a present one. He contends that the indicators as to the purpose and scope of the Act in dealing with future obstructions are clear in the wording of sections 14B and 14D(1), that is, the applicant's standing in making an application to prevent a severe obstruction of any view and then the Court's power to make orders to prevent a severe obstruction. He considers that if the jurisdiction is limited to only considering the present situation, then, in the context of the whole of the Act, the concept of prevention, as expressed in sections 14B and 14D(1) has no work to do and this cannot be what was intended.
35He also considers that if it is correct that the word 'are' is intended to limit the Court's jurisdiction to addressing presently severe obstructions then no order ought be made to permanently restrict the height of a hedge to a particular height by ongoing maintenance as that provides a remedy in respect of future growth and not simply removing a present obstruction. He considers the Court's practice of making those orders to be an arbitrary interpretation of the Act and not consistent with what he considers is the intent of the Act. That is, there is an inconsistency in the Court making orders for any such future severe obstruction if there is already some severe obstruction at the time of the hearing but not making orders for a severe obstruction that the trees are likely to be responsible for causing (but are not causing at the time of the hearing) in the future.
36Mr Galasso contends that as the future growth of trees must be considered, as intended by the Act, then all trees subject to the application could obscure all views of Whale Beach. In this he refers to the Miller and Hill reports and their estimates of the mature heights that the trees may attain. He thus considers that orders should be made for the pruning and subsequent maintenance of all 12 of the trees to a height of 2m. He contends that this height is not unreasonable as it will restore the applicant's iconic views but still provide good privacy to the respondent from overlooking of the pool area.
37Ms Duggan submits that the application should fail because there is no 'severe' obstruction of a view from the applicant's dwelling caused by the trees subject to the application (or at all). Apart from what was seen on the site she cites Mr Miller's evidence where he states that at present, from various viewing points, that the trees either make no impact on the views or the view is through 'intruding' trees. She contends that the applicant enjoys expansive and spectacular views from his residence of most of the beach and the ocean and that trimming them would only restore a view of the southern extremity of the beach.
38In regards to the history of the Act she considers that Part 2A was introduced to provide a remedy to applicants in certain specified circumstances. She contends that by adopting the word 'severe' the legislation elevates the obstruction to a high level. She asserts that the Act does not enshrine a right to a view but places a restriction on what someone may do on his/her land.
39With respect to the principles of view sharing in Tenacity she considers that the loss of view is minor and not severe; severe in Tenacity being one degree short of 'devastating' and in that particular case the loss of view was obliteration of views of 3 out of 4 storey, described by Roseth SC as 'severe'. She contends that the use of the term 'icon' in Tenacity refers to a view of an icon such as the Opera House or Harbour Bridge, and that no element of the applicant's view is icon although it is a very pleasant view of part of the NSW coast. Similarly, the applicant obtains the totality of what is available to him from most viewing locations throughout the dwelling. In general, she says, the applicant has panoramic views including mostly water views directly over his boundary but he obtains some of his view over someone else's property. She contends it is harder to retain views over other properties and sitting views are harder to maintain than standing views.
40Ms Duggan contends that a claim for orders under the Act cannot be based on future growth. She considers that the Court cannot determine what would amount to a hypothetical situation if it were to determine if a tree might get to severely block a view. There is a distinction between Parts 2 and 2A of the Act; whereas s 10(2) in Part 2 considers 'in the near future' as a jurisdictional test, the equivalent section in Part 2A, s 14E(2)(a) does not. The Act, she says, infers 'a finding' of a severe obstruction and the capacity to make orders is limited by s 14E(2)(a)(ii).
41Additionally, Ms Duggan asserts that a claim for orders cannot or should not seek orders that would render the vegetation beyond the scope of the Act. That is, in seeking to reduce the height to 2m brings the height below the minimum required to partly engage the jurisdiction.
42In considering what the balance should be, that is addressing sections 14E(2)(b) and 14F, if I were to find a severe obstruction of a view, she contends that the respondent will be vulnerable to more overlooking, not only of the pool but of living areas within the house as well as the raised deck at the eastern end of the pool. Given that the respondent's property is already overlooked from the upper level of the applicant's dwelling, further overlooking because of the applicant's expectation of a total view is unreasonable.
Findings s 14E(2)(a)(ii)
43In determining this matter I must consider the submissions made by the parties' advocates. Mr Galasso contends that I have been wrong in my interpretation of the Act, in particular in applying the word 'are' in s 14E(2)(a)(ii) to mean the severity of the obstruction at the time of the hearing and not taking into account any future obstruction. Similarly, he considers the making of orders to prevent future obstructions is inconsistent with that interpretation. I consider that the making of orders under Part 2A of the Act comes at the end of a path that traverses through a number of gates. Each gate in turn must be passed through to get to the final destination of an Order of the Court.
44The process of making an application under Part 2A is enabled by s 14B. The wording is clear - An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of (in this case) any view from a dwelling situated on the land (the applicant's land) if the obstruction occurs as a consequence of trees to which this part applies being situated on adjoining land.
45The first step in determining the matter is to ask the questions - do the trees subject to the application meet the jurisdictional tests in s 14A, that is, are they trees to which this Part of the Act applies, and are the trees on adjoining land. That is s 14A is the first gate through which the application must pass.
46In this matter, consistent with other findings in matters heard under Part 2A, I have determined that the trees do meet the jurisdictional tests in s 14A(1) as explained in [27]-[28] of this judgment. The trees are situated on land to which this Part applies (s 14A(2)) and they are on adjoining land. As a consequence, the determination progresses through to the next gate.
47The next gate through which the application must pass before any orders can be made is the next jurisdictional test in s 14E(1). This states that The Court must not make an order under this Part unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated and if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with s 14C. The parties have not contended this section and I am satisfied that there has been a reasonable attempt to reach agreement, as evidenced in the application, and notice has been given in accordance with s 14C. Therefore the determination can progress to the next gate.
48The next gate of relevance to this matter, being in regard to views and not sunlight, is s 14E(2)(a)(ii). This section states: The Court must not (my emphasis) make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land, and thence to s 14e(2)(b). Only if the Court is satisfied that there is a severe obstruction of a view caused by the trees does the Court need to move through to the next gate which is s 14E(2)(b) and the balancing of interests that is inherent in that section.
49I understand the point Mr Galasso is making with respect to the use of the word 'prevent' in sections 14B and 14D. However, the Court's power to make orders under s 14D, which states: The Court may make any such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of (in this matter) any view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned , only arises if the jurisdictional tests in s 14A, s 14E(1), s 14E(2)(a)(ii) and s 14E(2)(b) are satisfied.
50I do not accept Mr Galasso's assertions that I have been wrong in my interpretation of the word 'are' in s 14E(2)(a)(ii). As I stated in Tooth v McCombie at [14] - [15]:
14 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.
15 Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders.
51I maintain my interpretation of s 14E(2)(a)(ii) that the trees must be causing a severe obstruction of a view at the time of the hearing and stand by the reasoning in Tooth v McCombie at [14].
52In [49] I have underlined the word 'the'. This to me is taken to imply that the severe obstruction is the one that meets the jurisdictional test in s 14E(2)(a)(ii). This is compared to the use of the word 'a' in s 14B as in An owner of land may apply....to remedy, restrain or prevent a severe obstruction...
53Similarly, if the Court is satisfied that there is a severe obstruction of a view from an applicant's dwelling and the applicant's interests in regaining that view outweigh any other interests then, and only then, may the Court make orders under s 14D. In that instance there is nothing inconsistent in the Court making orders to not only remedy the situation but also to also make orders to prevent the obstruction in the future - as this is what s 14D says the Court may do. In consideration of Ms Duggan's contention at [41], s 14D places no restriction on what height a tree/ hedge may be pruned to as the discretion is left up to the Court. If 2m is appropriate in the particular circumstances of a matter then that is a matter for the Court to determine. Similarly, the Court is not obliged to make the orders the applicant seeks; s 14D enables the Court to make any orders it thinks fit. However, the application must get through the gates first.
54In returning to gate s 14E(2)(a)(ii) as Ms Duggan points out, and consistent with the findings in other cases heard under Part 2A, the use of the word 'severe' places the test at a high level. Mr Galasso considers that when considered qualitatively, the applicant's loss of views of various parts of the beach, sand, surf and headland is severe when the expectation is that on purchasing a beach house at Whale Beach one should have a view of Whale Beach.
55In this matter whilst I find that trees 1-5 do obstruct parts of some views from some viewing points on the applicant's dwelling I do not find that any of the twelve trees subject to the application are severely obstructing any of the views from the six nominated viewing points. The views observed to be available to the applicant at the site inspection include beach, ocean, surf-zone, headland, ridgeline, land/water interface and distance views of the coastline. Where obstructions do occur there are generally filtered views through the trees and/or the obstructions are minor in the context of what is available. Unless there are very particular circumstances, I consider it unreasonable to expect that from any one seated or fixed position from any dwelling one should have unobstructed views as that is not ordinarily how one lives within a dwelling. I consider that this is not what the legislation intended. In this matter the views would, in my opinion, be considered by anyone visiting the site, to be panoramic and impressive views of Whale Beach and the coastline beyond.
56As s 14E(2)(a)(ii) is not satisfied this is the end of the path for this application. There is no need to consider s 14E(2)(b) and the discretionary matters in s 14F. However, as determined in Hinde v Anderson & anor [2009] NSWLEC 1148 should the circumstances change a fresh application can be made.
Orders
57As a consequence of the forgoing, the Orders of the Court are:
(1)The application in its entirety is dismissed.
(2)The exhibits are retained.
J Fakes
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: 30 May 2011