Hickey v Inman

Land and Environment Court (NSW)|2022-06-21

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: Michael Hickey, the applicant, has an outlook from his elevated property that includes views over and along Curl Curl beach to the north north-east, and across the Pacific Ocean to the north-east and east. The applicant's property is located higher up a slope than that of the respondents, Luke and Raechelle Inman. The parties' properties face different streets, but they share a common boundary which runs roughly north to south. The Inman's rear boundary on the western side of their property is the northern end of Mr Hickey's east side boundary. Other properties share Mr Hickey's east side boundary further south of the Inman's.
Past owners of the Inman's property planted two Melaleuca trees (the trees) in their rear yard. One tree was planted near their rear boundary and the other near their southern side boundary.
Mr Hickey's has occupied his dwelling since 1994. In his Tree Dispute Claim Details (Form G), he estimated that the trees were planted in the early 1990's and that they were about 2 metres (m) tall upon his occupation in 1994.
Over the intervening years, the trees have grown such that they are now about 7 to 8 m tall, and their foliage has met and intermingled. This has resulted in a marked obstruction of Mr Hickey's prized views and in early January 2022 he commenced communication with the respondents seeking a solution that would restore his views.
While the Inman's initially appeared open to negotiating a settlement, they did not agree with Mr Hickey's characterisation of the two trees as a hedge. Under the Northern Beaches Council (Council) Development Control Plan (DCP), the extent of pruning permissible without the requirement for Council permission varies greatly, depending on whether the trees were considered to constitute a hedge. Amenity trees could be pruned annually by up to 10% while hedges are exempt from the requirement of Council permission. The Inman's sought clarification as they did not wish to prune the trees contrary to the requirements of the DCP.

The on-site hearing

The hearing commenced with an inspection of the respondents' rear yard, with both parties self-represented. Initially I confirmed that the two trees were planted in quite separate locations in the small rear yard, at least four metres apart, and each adjacent to different boundaries which are perpendicular to each other.
A substantial small shed constructed from sandstone blocks is located in the south-west corner of the Inman's back yard, and this exacerbates a sense of separation between the trees.
The Court moved to the applicant's property and inspected the obstruction of views as a consequence of the trees from the various nominated viewing locations, then proceeded with oral submissions.
Mr Hickey seeks the following orders: 1. The respondents engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to prune Melaleuca trees T1 and T2 to a maximum height of 3.5 metres, measured at the base of each tree. 2. Subsequent to the initial pruning of T1 and T2, respondents are to maintain T1 and T2 at a height no greater than 3.5 metres, measured at the base of each tree. 3. The works are to be undertaken in accordance with the Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016, and the Workcover NSW 'Code of Practice for the Amenity Tree Industry', 1998. 4. Any subsequent planting along the southern, western or northern boundaries of the respondents' property to be maintained at or below a maximum height of 3.5 metres, measured at the base of each tree. 5. Order 1 to be completed within 45 days of the date of these orders.
In preparing for the final hearing, Ms Inman contacted Robyn Hargrave, a daughter of the prior owners who planted the trees. Following a conversation in early June 2022, Ms Inman emailed Ms Hargrave with her summary of this conversation and Ms Hargrave subsequently confirmed in an email reply that "Everything you have written is exactly as I mentioned to you in our phone conversation. My parents have never mentioned putting in a hedge at any time. Their concern was totally on finding a plant that would survive in that area because of the salt."
Ms Hargrave confirmed that the trees were planted more than 50 years ago, that her parents were seeking trees that "looked nice'', tolerated the salty air, and "would provide shelter in the backyard", and "are not, nor were ever intended to be or form a hedge".
Mr Hickey objected to this evidence on the basis that it was leading Ms Hargrave to confirm Ms Inman's email rather than evidence provided in Ms Hargrave's own words. He also noted that Ms Hargrave was not available to be questioned on this evidence.
Mr Hickey orally submitted that Ms Hargrave did not know her parents' intentions when they planted the trees, but only that they never mentioned a hedge to her. He suggested that it was understandable that Ms Hargrave's parents wouldn't have discussed the planting with a (then) teenage daughter.
I accept that Ms Hargrave's evidence is less reliable than had it been provided as a signed affidavit, and that her 'confirmation email' is a less convincing format than if provided in her own words. Nonetheless, I have no reason to disbelieve Ms Hargrave, and her statement is consistent with the evidence I adduced from my site inspection.
As a consequence, I have discounted the significance of Ms Hargrave's evidence, but it remains relevant and useful to the Court.

Jurisdictional requirements - Part 2A

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 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].
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 views, or of sunlight to a window of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits that the trees provide.

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: (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).
In 2019, Mr Hickey had been a respondent in an action under s 14A of the Trees Act, recorded in Wise v Hickey [2019] NSWLEC 1524, where his western side neighbour sought relief from view obstruction caused by a hedge of palms on Mr Hickey's land.
As a consequence, Mr Hickey was familiar with the legislation and mounted well substantiated arguments. He appreciated that the crux of this situation was whether the two trees formed a hedge for the purposes of the Trees Act, and this is a key element which goes to the aim of the Trees Act.
While orders may be made for severe obstruction of views as a consequence of a hedge under s 14A of the Trees Act, no such remedy is available under the Trees Act for severe obstruction of views as a consequence of individual amenity trees. Therefore, distinguishing between a hedge and amenity trees is critical.
In Wein v Reeves [2022] NSWLEC 1019, I assessed a site in Vaucluse where the applicant claimed two trees formed a hedge. At [15], I noted; "Hedges may be comprised of two trees, but when representations are made that only two trees comprise a hedge, there is a distinct onus on the applicant to prove that the relationship between the trees satisfies the requirements of the Trees Act. Typically, this would involve trees of similar species and form, planted at the same time, relatively close together."
In Johnson v Angus [2012] NSWLEC 192 (Johnson), Preston CJ provides extensive commentary in an unsuccessful 'hedge' appeal under the Trees Act, and this judgment is a key binding precedent for Commissioners conducting hearings under Pt 2A of the Trees Act.
Mr Hickey made written submissions that the two trees "meet all criteria in Johnson relevant to the determination that the trees are planted to form a hedge" because they are "planted in a line", "are planted 2 to 3m apart" and thus are proximal to each other, "are the same species", "are of similar height, form and maturity" and thus appear to have been "planted at the same time", and because the planting "has resulted in the formation of a hedge", about "11m wide and 7- 8m high". He also emphasised the selection of species that were long lived, tolerant of the harsh environmental conditions, and capable of growing "so as to produce sufficient width and height" to ensure "that an effective screening hedge would result", and that the trees were planted in ideal locations to result in a hedge that would screen the respondents' back yard from oversight from the applicant's and two other nearby properties.
While this is a sound argument, after my inspection and consideration of the trees in site context, I do not accept that the trees "meet all criteria in Johnson relevant to the determination that the trees are planted to form a hedge", and I am not satisfied that the trees "are planted (whether in the ground or otherwise) so as to form a hedge", for the following reasons.
At [39]-[40] of Johnson, his Honour, discussing the language of s 14A(1)(a) states; [39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge. [40] Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape (my emphasis).
The applicant is incorrect in claiming that the trees "are planted 2 to 3m apart". As viewed on site, they were planted at least 4m apart, and the respondents' claimed 5m. In the context of the respondents' small back yard, they were planted far apart, on separate sides of the yard, near different boundaries. That the trees were "planted in a line" is irrelevant when considering only two trees, as it is axiomatic that the spatial relationship between the planting location of two trees can only be a line.
I accept Ms Hargrave's position that the trees were planted more than 50 years ago as she is the only relevant participant in this matter who has a sound basis for such an opinion, and there is no reason why this evidence would be untrue. While Mr Hickey, in his application, estimated that the trees were likely planted just a few years prior to his occupation in 1994, and were about 2m tall upon his occupation, Ms Hargrave's evidence suggests that they were planted prior to or around 1972.
Possible implications of this are that the trees only grew about 2m over the first 20 years of their life. Alternatively, perhaps the trees were taller at the time of Mr Hickey's occupation (but photographs with the application show uninterrupted views in 1994), or perhaps they were pruned to maintain a height of about 2m, notwithstanding that such sustained pruning is unlikely if one was intending to achieve screening for privacy.
In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said, "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage". Similarly, more than a theoretical possibility is required to convince the Court that trees were planted "so as to form a hedge".
Mr Hickey sought to construct the motivation and intent of Ms Hargrave's parents upon planting the trees as "planting a hedge" for the purpose of gaining screening from neighbouring properties but the implications raised above at [31] beg many questions.
If a hedge for screening was intended, why plant only two trees, and, why so far apart? If the trees were planted "so as to form a hedge", why would one not change or augment the planting if after about 20 years in situ they had achieved almost no screening? Would one not more likely consider the "hedge planting" a failure after say 5, 10, or even, if very patient, 15 years and thus start again with faster growing species, and more of them, closer together?
Based on all these considerations, and the visual evidence on site, I find it unlikely that the trees were planted "so as to form a hedge". Rather, it is much more likely that they were planted as two specimen amenity trees, as claimed by Ms Hargrave.

Conclusion

As a consequence of all the adduced evidence, I am not satisfied that the applicant has proven, on the balance of probability, that these two trees were planted for the purpose of forming a hedge as required by the Trees Act. Therefore, s 14A(1)(a) is not met and the trees are not trees to which Part 2A of the Trees Act applies.
As his Honour states, at [38] of Johnson; "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees (my emphasis)".
Had the trees been deemed to have been planted "so as to form a hedge", I would have applied, under s 14E(2)(a)(ii) of the Trees Act, the severity of the obstruction of all or any of the views from the applicant's dwelling as a consequence of any or all of the trees in the hedges.
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 (Tenacity). Mr Hickey reasonably applied the first three steps of the four-step process in Tenacity to his context, and I accept his reasoning and agree that the obstruction of views from his living areas as a consequence of the trees was severe.
When Mr Hickey, presuming s 14E(2)(a)(ii) of the Trees Act was met for the hedge, considered the balancing of interests required by s 14E(2)(b), he noted at Q26 of his application (which relates to s 14F(k)), that "Pruning of T1 and T2 will have no adverse health impacts on those trees. However, it is expected that the remaining hedge foliage would thicken as a result of pruning. Based on orders sought by the applicant, this would increase the overall privacy outcome/benefit for the respondents by producing a more uniform hedge at elevations most relevant to privacy."
I disagree that the alleged 'hedge' could be pruned to Mr Hickey's desired height of 3.5m, which is less than half of its current height, and be subsequently maintained at that height, with "no adverse health impacts on those trees". With trees of this age and maturity, such foliage depletion and extensive wounding by pruning would likely cause considerable stress to the trees.
Having said this, the absence of the views previously available to him may be a considerable opportunity cost to Mr Hickey. As such, I do consider that the trees are a sufficiently robust species to tolerate a height reduction of up to 25% without major impact, and the Inman's may well gain improved lower foliage density and thus privacy as a consequence.
As these trees do not meet the requirements of s 14A(1)(a) of the Trees Act, I have no power to make orders to this effect, but it may be a basis for further discussion between the parties, and Council.

Orders

As a consequence of the foregoing, the orders of the Court are: 1. The application is refused.

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: 12 September 2022

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