Holdsworth v Daddo

The onsite hearing

1. With both parties self-represented and in attendance, the trees in the respondents' property were inspected initially. T1 and T2 were taller than 2.5 metres, but nonetheless were quite small. They had both been planted into a garden bed in their rear yard bordering their southern side neighbours, from a single pot, as is common for such palms. T3 is much taller and the Holdsworth's note in their Claim details form at Q3a, that T3 was already in situ when their dwelling was constructed by previous owners, but it was much smaller.
2. From V1, where submissions were heard, Mr and Mrs Holdsworth enjoy sweeping local and district views spanning a broad arc of about 150 degrees from north-west around to the east. The view includes undulating landforms, and extensive native and urban vegetation, and it includes a narrow tunnel like view through to the Newport beach surf.

Jurisdictional requirements

1. In Part 2A matters of the Act, 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].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: 14A Application of Part (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).
3. Mr Holdsworth attempted to persuade the Court that these three palms form a hedge because, in summary, they are a collection of trees in the way of a view, they are said (by the respondents) to provide privacy, and they have the characteristics of a hedge, for the purpose of this dispute.
4. I am, however, not satisfied that they are planted so as to form a hedge, as required by s 14A(1)(a) of the Act.
5. T3 was planted well before Mr and Mrs Holdsworth occupied their property in 2005 and is now 10-12 metres tall. It is located beside the driveway near the road, far away from T1 and T2. They are both about five metres tall, and much younger than T3.
6. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 ('Johnson'), considering a similar situation at [43], Preston CJ says; "Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
7. The situation with T3 has these elements. T3 was planted at least 10, and probably 20 years before the T1 and T2 were planted. Hence, T3 could not have been planted so as to form a hedge with T1 and T2. Noting the final sentence in [14], T3 "cannot later acquire the status of being planted so as to form a hedge by the palms (T1 and T2) being planted to form a hedge in proximity" to T3. As a result, T3 cannot be a hedge with T1 and T2, so T3 is set aside.
8. Turning now to whether T1 and T2 form a hedge, they are more than 2.5 metres tall, and were planted, but I again am not satisfied that they are planted so as to form a hedge, as required by s 14A(1)(a) of the Act.
9. 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 Act. T1 and T2 are of the same species and form, and very likely planted at the same time. Though their trunk bases make firm contact together at ground level, I am satisfied that they are two separate trees, from two seeds planted together.
10. This was a single planting, and there is no apparent connection to neighbouring vegetation scattered along and around the side boundary. It appears more like two stems of one tree and would very likely have been marketed as an amenity plant, not as a hedge, nor a component of a hedge. At Q 26 of Ex B, the applicants note that T1 and T2 may not provide much screening for privacy across the respondents' common side boundary, and on site this is apparent. T1 and T2 may perhaps be termed a clump, but I have received no evidence to satisfy me that they are a hedge for the purposes of the Act.
11. Reinforcing my finding, in Wisdom v Payn [2011] NSWLEC 1012 ('Wisdom') at para [45], Moore SC and Hewett AC state: "….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."
12. The appearance of T1 and T2 does not satisfy such a description.
13. Paragraph 38 of Johnson also encapsulates the situation encountered here, where His Honour says; "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."
14. From this analysis, I determine that T1, T2 and T3 were not planted to form a hedge, and do not currently form a hedge. Therefore, s 14A(1)(a) of the Act is not satisfied, and I thus do not have powers to make orders.
15. If, however, I was incorrect, and the trees were planted so as to form a hedge, the Court would next consider s 14B. This states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner (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.
16. The Land and Environment Court (LEC) has applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, in which the Court of Appeal held that adjoining does not mean immediately linked to or contiguous with. Trees located across a public street (P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128) or separated by a public walkway (Murray v Shoebridge [2007] NSWLEC 785) from the applicant's property have been held to be "on adjoining land".
17. Therefore, though these two properties are separated by a public street, I am nonetheless satisfied that for the purpose of this application, the trees are "situated on adjoining land".
18. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. They have satisfied this requirement, as displayed by evidence of messages and emails sent to the respondents over a period of more than twelve months, along with a request to engage in mediation.
19. Had the trees been planted so as to form a hedge, and s 14E(1)(a) was engaged, the next step is to assess the severity of the obstruction of view from the applicant's dwelling, or sunlight to a window of the applicant's dwelling, as a consequence of any or all of the trees in the hedge.
20. 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.
21. Looking from the applicants' main living area and adjacent deck (V1) towards the 'iconic' beach view stressed by the applicant, this view forms only a minor sliver of the total wide view available to the applicants. Mr Daddo noted that photographs provided in Exhibit B have zoomed into this relatively distant view element, and overexaggerate its proportions, and I agree. Indeed, in his site diagram for Q2 in Exhibit B, Mr Holdsworth has indicated a narrow segment of less than 15 degrees, where the view is obstructed, and this is less than 10% of the total available viewing arc from either V1 or V2.
22. The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145 ('Haindl'). At para [26], Moore SC and Hewett AC state: "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."
23. At [28] of Haindl, the Commissioner's say; "For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction."
24. Therefore, I was not satisfied that the obstruction of the view from the applicants' nominated locations was severe, rather it is minor, and as a result, s 14E(2)(a)(ii) is also not engaged.
25. Finally, the applicants claimed that T1 and T2 are likely to increasingly block their views in the future, but the word 'rise' (in 14A(1)(b)) is in the present tense and does not envisage a future height. This is discussed at length in Wisdom at paras [53] to [59].

Conclusions

1. I am not satisfied that three palm trees (T1-T3) are planted so as to form a hedge, as required by s 14A(1)(a) of the Act. Even if I was satisfied that s 14A(1)(a) was engaged, I am also not satisfied that the obstruction of views as a result of these trees is severe, so s 14E(2)(a)(ii) is not engaged. Therefore, I have no jurisdiction to make orders, and there is no requirement for me to consider s 14F.
2. Though the onus is on the applicants to prove their case, Mr and Mrs Holdsworth were quite unprepared to prosecute their claim and appeared entirely unfamiliar with the requirements of the Act. Had they been more conscientious, they may have appreciated that their case was doomed to fail, and thus not wasted their neighbours' time.
3. As a result, Mr and Mrs Holdsworth displayed an unusual sense of entitlement to compel their neighbours to prune their trees, apparently based on some nebulous notion that it was 'unneighbourly' for them to do otherwise. Clearly, and somewhat obviously, no such right exists, and it is certainly not a basis for a remedy available under the Act.

Orders

1. The Court orders that: 1. The application is refused.

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