Hynd v Owners Corporation SP34063

1. The respondents agreed in early 2016 to a request from Mr Hynd to allow pruning of the Lilly Pillys, but specified it was to be completed at his expense. Mr Hynd objected to having to pay for the pruning, on the basis that the respondents had "paid for pruning themselves on three other occasions" and because he believed that "they were obliged to keep the hedge pruned under the Trees Act". When Mr Hynd's written requests to the Owners Corporation in April 2018 for pruning and/or removal of hedge trees went unanswered, he commenced action under the Trees Act.
2. In response to the application, Mr Woolf, solicitor for the respondents, submitted that the trees have not been planted to form a hedge, that the palms may have been self-sown, and that Mr Hynd's reference to any future obstruction does not satisfy the jurisdiction of the Trees Act. He also contends that Mr Hyde's view corridor is much wider than indicated on a photograph in his application and that any obstruction to views related to the hedge is not severe, because he still has excellent views of Sydney Harbour and its surrounding headlands. Additionally, he contends that other trees in adjacent properties have a more marked impact on obstruction of Mr Hynd's view than the hedge and should also be considered as a discretionary factor.
3. In Part 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 (Granthum) at [17] - [22].
4. The respondent's property is diagonally adjacent to the applicant's and they meet at their southern and northern corners respectively. As such, I am satisfied that they are on adjoining land, and that all trees are located on the respondent's property.
5. 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).
6. All these trees are taller than 2.5 metres. The five Lilly Pillys have marked differences in trunk DBH and varied heights, and the three palms also have differing heights. Their planting is said to predate 1995. While there is no evidence showing that any two trees were planted concurrently, the Trees Act sets no requirements that the plants subject to the application must be of the same species or planted at the same time. Mr Woolf contended that the Kentia palms may have been self-sown but I am satisfied that it is likely that all the trees were planted.
7. The pattern of the planting is of particular relevance here. The rear boundary of the respondent's property is about 14 metres long in a south-easterly direction away from corner point A, where the properties meet. Lilly Pilly 1 (L1) is set back about 4 metres from the rear fence and about 1.5 metres in from the side boundary (B) that runs towards the south-west from corner point A. L2 is only about 0.8 metres from the rear fence and about 2.4 metres in from the side boundary (B) while L 3 is about 1.4 metres from the rear fence and about 4.3 metres in from side boundary (B). L4 is about 6 metres beyond L3, and is about 2.7 metres from the rear fence (corrected on site from 1.4 metres noted in the application) and about 10 metres in from side boundary (B). L5 is almost another 4 metres from L4, is growing very close to the far side boundary, and is about 3 metres from the rear fence.
8. Palm 1 (P1) and P2 are located in the big gap between L3 and L4. P1 is about 1.2 metres in from the rear boundary, about 2.5 metres beyond L3. It is almost equidistant from the two side boundaries. P2 is about 1.4 metres in from the rear fence (corrected on site from 2.4 metres noted in the application), about 1.3 metres beyond P1, and thus almost 9 metres from the side boundary (B). P3 is growing almost 6 metres from P2, very close to the base of L5, within one metre of the far side boundary, and almost 3 metres from the rear boundary.
9. This pattern is at best irregular. Addressing this issue in Wisdom and Payn [2011] NSWLEC 1012 at (Wisdom) [44] - [46], Moore SC and Hewett AC state: 44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings. 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. 46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded.
10. In McLaren v Lewis [2011] NSWLEC 1170, this Court at [25] - [26] expanded on the findings in Wisdom: 25 In my view, apart from a linear relationship, the trees should also be relatively close to one another. The proximity will be somewhat dependent on the scale of the landscape, the species of the tree and the intent of the planting … [reference to paragraph [46] in Wisdom]. 26 In this paragraph, the Senior Commissioner and Acting Commissioner use the example of 'modestly old firs along a driveway'. Whilst this is clearly an example of what might be considered a hedge for the purpose of the Act, it hints at a largish block of land and a more formal planting. In typically smallish backyards of dwellings constructed over the past few decades I consider it would be unreasonable to construe that any 2 trees, particularly of different species, planted any more than about 3 m apart is a 'hedge' even though any 2 trees will be in a linear arrangement with one another.
11. In support of the respondent's position, Mr Woolf provided an aerial photograph showing the rear yard with a dense intermingling canopy cover, but no pattern that suggests any delineation as a hedge. To substantiate his view that the trees are a hedge, Mr Hynd provided Alameddine v Jones [2013] NSWLEC 1021 (Alameddine) where Galwey AC noted at [4], "there are 21 Lilly Pilly trees planted in a straight row in a raised garden bed on the Jones' property, adjacent to the common boundary". Unlike Alameddine, there is no evidence of regularity or arrangement about the tree planting in this case.
12. Therefore, s 14A(1)(a) does not apply to these trees and the Court has no jurisdiction to make an order for any intervention with them. This element of the application is thus dismissed.
13. Even if I am wrong with respect to s 14A(1)(a), the next step is to assesses 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.
14. 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 … (ii) are severely obstructing a view from a dwelling situated on the applicant's land.
15. In the application, Mr Hynd raises concerns about future view loss. For every viewing location, he notes that each "view will be severely obstructed if not completely blocked if the Lily Pilly continues to increase in height". 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.
16. The applicant owns an apartment on the top floor at the southern end of the block. The final hearing was held on site and the views were observed from five positions in the applicants' apartment; two glass doors (GD 1 and GD2) leading to the balcony that provides views from the south-east around to the north-west, and 3 windows (W1 - W3) that provide a narrower view from south-east to the south south-west. Views were assessed from both a standing and sitting position and all adjoin the applicants' principal living area.
17. The view corridor is much wider than shown in Mr Hynd's application, which appears to relate only to the central harbour view. Mr Hynd also submitted that his view obstruction amounted to about 50% of his total view, and about 80% of his water views. The evidence on site does not support this as he retains very good views of both the harbour and surrounding headlands.
18. As discussed in detail in McDougall v Philip [2011] NSWLEC 1280 at [19] - [24], the intent of Part 2A is not to enable an applicant to seek orders against their neighbours so as to gain a view they did not have when they purchased their property. While the applicant may well have had more of a view of the water than he does now, his views are unlikely to be significantly reduced from those that he had upon occupying the property in August 2013. While it is true that some of the subject trees do obscure parts of the ocean, extensive views of the water, landscape features and horizon were visible over and through them.
19. To the extent that the applicant's view is obstructed, it is also more constrained from some viewing points than others, and punctuated by palms and a Norfolk Island Pine in neighbouring properties, which are not the subject of the application.
20. As discussed in Hainl v Daisch [2011] NSWLEC 1145 at [26], the Court considers the view as a whole and not on a slice by slice basis. In using the word 'severe', the legislature has set a high bar. Perhaps, the most apposite synonym is 'extreme' (see Ball v Bahramali [2010] NSWLEC 1334). The view loss in this case is not extreme.
21. In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2014] NSWLEC 140. The qualitative scale of impact at paragraph [28] gives a range of negligible, minor, moderate, severe and devastating. In Mr Hynd's case, I would rate the impact as minor.
22. Therefore, as s 14E(2)(a)(ii) is not met, the Court has no jurisdiction to further consider the matter. There is thus no scope to consider the balancing of interests required by s 14E(2)(b).
23. The orders of the Court are: 1. The application is dismissed. ………………………………. John Douglas Acting Commissioner of the Court

Amendments 22 August 2018 - Typographical error - First sentence in paragraph [6] should read: "In response to the application, Mr Woolf, solicitor for the respondents, submitted that the trees have not been planted to form a hedge, that the palms may have been self-sown, and that Mr Hynd's reference to any future obstruction does not satisfy the jurisdiction of the Trees Act" 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: 22 August 2018