Johnson & Ors v Angus & Anor

The onsite view 5The hearing took place onsite on 4 June 2012, allowing observations of the trees, the views and view obstructions, and all relevant issues from both properties. 6There are 20 trees in total. At the northern end of the group of trees is a Turpentine (Syncarpia glomulifera) (T1) that was present when the family purchased the property in 1962. South of that tree, in an approximately linear grouping along the boundary, are 19 palms (T2 to T20): two Kentia Palms (Howea forsteriana) and 17 Bangalow Palms (Archontophoenix cunninghamiana). The land falls toward the north (toward the beach) so that, generally, trees with higher numbering are on higher ground than trees with lower numbering. All 20 trees are more than 2.5 m in height. 7The applicants submit that the 20 trees form a single hedge or, failing that, that T1 and T2 form one hedge and T3 to T21 form a second hedge. 8At the onsite view we were taken to the ten view points from which the applicants submit there are severe obstructions of views. Six of these are on the dwelling's upper storey and four on the lower storey. 9Beginning upstairs, view V1 is from the breakfast room. From here, T1 blocks half of the view to the north, including half of Lion Island, the eastern head and part of Clareville Beach. From the front of the room, near the window, some of the palms partially obstruct the view of the beach further to the east. 10From V2, the lounge room, T1 blocks the entire central part of the view to the north - the heads and Lion Island - from both seated and standing positions. From a standing position it also partially blocks a view of Clareville Beach, as do some of the palms, particularly T11 and T14. Mr Angus pointed out that other trees further distant than the palms contribute to the obstruction of the view to the beach. 11V3 is from the Master Bedroom. From here, T1 obstructs a view of the western head but Lion Island is visible to its east. Palm fronds, particularly of T11 and T14, obstruct the view further to the east. 12The kitchen, V4, is south of the breakfast room and there is only a narrow view from here. T1 obstructs the view of Lion Island. 13From both the dining room (V5) and the entry (V6), T1 blocks the view of the island and the heads, but I cannot see that the palms severely obstruct any view from here. 14Moving downstairs, T1 obstructs the view from the small window in the western bedroom (V7). 15From the central bedroom (V8) T1 obstructs the view of the water and Lion Island. 16From the sunroom (V9) T1 obstructs water and sky views and palms T6 to T8 obstruct views of the horizon. 17From both seated and standing positions on the terrace (V10) T1 obstructs views across Pittwater. Some of the palms, especially T5 and T8, partially obstruct views of the water. 18Mr Angus took us to the deck that he uses as an entertaining area. It is at the rear of his property, fronting the beach. T1 provides shade, especially from the hot western sun, and privacy to the deck. The palms provide shading to the property and privacy screening between the deck and the applicants' dwelling.

Do the trees form a hedge? 19 The first jurisdictional test is at S 14A(1) of the Act: (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). 20The trees form a group of 2 or more trees. Are the trees planted? There is no dispute about the 19 palms being planted during the 1990s. However the provenance of T1, the Turpentine, is not as clear. The tree predates the applicants' family purchasing their property. 21The Turpentine is a locally indigenous tree - the species occurs naturally in the area. In his Arboricultural Assessment of April 2012 Mr Peter Caster, of Tree Wise Men, states at paragraph 4.1.3: Turpentine, Syncarpia glomulifera is native to the Shale Slopes soil type of the locality. This species is also included on the plant assemblage of the Scientific Committee Determination for the Pittwater Spotted Gum Forest an endangered ecological community under the Threatened Species Conservation Act 1995. 22At paragraph 4.1.1 Mr Caster states that the Turpentine "...appears to have been planted in the early 1960s or late 1950s..." and at 2.3.3 that it is "...most likely to have been planted rather than being 'self-seeded' given the extent of clearing in this area of properties in the 1950s and 1960s (see Aerial Photos 1961, Attachment A)." The aerial photo of 1961 shows some clearing of the applicant's property had occurred but also shows extensive remnant vegetation across the broader landscape. This suggests to me that it is more than feasible that T1 grew from a naturally falling seed. In oral evidence Mr Caster stated that T1 could be seen as a shadow on the 1961 aerial photo and that it is likely to have been planted or self-seeded during the 1940s. 23There is more than a little doubt in my mind that tree T1 was planted. None of the available evidence demonstrates it was planted. However, even if such evidence was available, I do not believe that T1 completes the test at s 14A(1)(a): the tree must be planted so as to form a hedge. 24Ms Taylor, for the applicants, submitting that the twenty trees form a hedge, argues that Fakes C addressed the relevant jurisdictional questions in Torday & Anor v Eather [2012] NSWLEC 1014. She submits that the judgment demonstrates that trees do not have to be of the same species and do not have to be planted on the same level, both notions that I accept. In Torday, Fakes considered the discussion of these very matters (what does it require for plants to form a hedge?) by Moore SC and Hewett AC in Wisdom v Payn [2011] NSWLEC 1012 and Fakes C in McLaren v Lewis [2011] NSWLEC 1170. In Wisdom, the Commissioners addressed issues relating to the planting arrangement of trees. In McLaren, Fakes C at [24] regarded a group of trees containing four different species as forming a hedge. 25Each situation that comes before the Court has its own features and there is no one rule that can satisfactorily define, for all situations, what forms a hedge. Considering these decisions together, the overall position of the Court on this question can be summarised as: (a)The group of trees can be more than one tree deep and does not need to be in a perfectly straight line, but the tree planting must have a degree of regularity and arrangement, in a linear fashion. (b)The trees must be relatively close to one another. The proximity required will depend on the scale of the landscape, the tree species and the intent of the planting. (c)Trees of several species can form a single hedge. 26Moore SC and Hewett AC in Wisdom went further to say at [45] that "...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." 27At [46] the Commissioners continued with: "...a purely random planting of trees cannot be so regarded..." and "...a single tree that is obviously separate and distinctly so cannot be so regarded." The subject of this last point was a tree that was "separate and distinctly so" in a spatial sense. My view of the Turpentine is that it is separate, and distinctly so, in several other important ways. 28Firstly, the palms are perhaps 15 or 20 years old, while the Turpentine is perhaps 60 or even 70 years old. Not only is it older, it is distinctly so. 29Secondly, the Turpentine appears as a distinctly individual tree in the landscape. It is considerably larger than the nearby palms. It has a dense crown from low on its stem and leaves like a gum tree. The palms, on the other hand, have several long fronds at the tops of bare stems. The palms, although there are two species, appear relatively uniform along the planting. The Turpentine's appearance makes it a separate landscape feature, and not part of this otherwise homogenous group of plants. 30Ms Taylor argues that there is no requirement for all trees in a hedge to be planted at the same time, and I accept this. Certainly, planting a row of bottlebrush trees and then, a few years later, adding some more trees at one end of that row to extend it, would not prevent the entire planting being considered as a single hedge. However in this situation the Turpentine appeared first, as a solitary tree, and a group of very different trees was then planted along the boundary up to this tree. It was certainly not a hedge when it grew here and has not become part of one. Its age, size, form and appearance all make it a separate tree, and distinctly so. 31I will set a more extreme example. A 150-year-old Oak tree grows adjacent to a side boundary of a property. It is 20 m tall, but foliage at the extent of its broad crown reaches down to the ground. The owner of the tree, wishing to increase privacy between her dwelling and the neighbouring one, plants a row of Lilly Pillies along the boundary. The Oak is in the middle of this row. She keeps the Lilly Pillies pruned neatly at 2.6 m tall and 1 m wide. The foliage at the Oak's outer limits touches the foliage of the squarely pruned Lilly Pillies. The base of the Oak may now be part of a row of trees - a group of trees with their stems in a linear and regular planting arrangement, their foliage touching - but I do not think that most people, when viewing such a planting, would regard the Oak as part of the hedge.

Part 2A of the Act does not apply to T1 32I am not satisfied that T1 has been planted; nor do I agree that it is part of a hedge. Considering s 14A(1)(a), I do not accept that Part 2A of the Act applies to the Turpentine. It follows that there is no need to consider its contribution to any obstruction of views, other than as an additional matter when determining the application regarding the palms at s 14F(m): anything other than the trees that is contributing to the obstruction.

Part 2A of the Act applies to T2 to T20 33T2 to T20 are all palms - two different species, but all palms. T2 to T20 were planted during the 1990s. They were planted in a roughly linear fashion along the respondents' side of the boundary. They are all more than 2.5 m tall. Their crowns generally overlap and all have a similar appearance so that, even where there are gaps between adjacent trees, there is a sense of continuity along the row. The 19 palms, therefore, are planted so as to form a hedge and, according to s 14A, Part 2A applies to them.

Obstruction of views caused by the palms 34The applicants' submission is that the palms obstruct views of high importance. I noted that from several viewpoints the palms caused severe obstructions, particularly from V3, V9 and V10, where they block views of Pittwater to the horizon. To a slightly lesser extent, several palms partially obstruct the view down to the beach, or the interface of land and water. I therefore accept that some of the palms are severely obstructing high-value views from the applicants' dwelling and that the severity of this obstruction justifies interference with the trees. The tests at s 14E(2) are met and the Court can make orders regarding the palms.

The parties propose consent orders 35Once informed of my view regarding T1, the parties were left with little remaining disagreement about appropriate ways to deal with the palms. They proposed the following consent orders: (1)The applicants are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) to remove T11 and the largest stem of T14 within 30 days of the date of these orders. (2)The respondents are to provide all access necessary for the above works on reasonable notice and during reasonable hours of the day. (3)The respondents are to engage a suitably qualified arborist to periodically (annually or as required) prune T4-T9 and T12-T20 (includes the remaining stems of T14) to remove fronds that overhang the applicants' property and that obstruct the view, in such a way that the trees' ongoing vigour and condition are not adversely affected. The initial pruning is at the respondents' expense. The cost of subsequent pruning is to be shared equally by the parties with the applicants paying the respondents 50% of any receipted invoice for the pruning works within 7 days of receiving such an invoice, if that invoice is provided to them within 14 days of completion of the works. 36The parties also agreed that conditions on replanting to replace the removed palms would be appropriate, but wanted time to prepare suitable landscape plans. Therefore, at the end of the hearing of 4 June 2012 the matter was stood over until a further hearing and the following directions were made: (1)The applicants are to file and serve a planting plan by close of business on 6 July. (2)The matter will be stood over until a further hearing at 4:15 pm on 11 July 2012.

Further submissions 37The applicants vacated the hearing of 11 July, subsequently filing a Notice of Motion to be heard by the Registrar on the jurisdictional issues around the Turpentine (T1). The Notice of Motion was referred to the Duty Judge yesterday, and immediately after that the applicants appeared before me. 38Ms Pearman, Counsel for the applicants, offered up new consent orders that include the removal of the Turpentine. As the respondent has consented to the proposed orders, and Ms Pearman only intended to make submissions supporting those orders, I heard the matter yesterday ex parte. Despite the parties' agreement on consent orders, the Court is not obliged to make those orders. In fact, as expounded by Sheahan J in Breen & Anor v Caronna & Anor [2008] NSWLEC 293, the Court must still be satisfied of the jurisdictional tests before making consent orders. 39Ms Pearman is of the view (and I gather from the consent orders that the respondent now supports this view) that the Court does have jurisdiction over the Turpentine. Ms Pearman submits that there are several judgments that show contradictory positions of the court on the jurisdictional questions of "what is planted" and "what forms a hedge". She took the Court to several cases that she says demonstrate this, including Wisdom v Payn [2011] NSWLEC 1012, Torday & Anor v Eather [2012] NSWLEC 1014, Cavalier v Young [2011] NSWLEC 1080, Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107, Salisbury v Harrison & anor [2011] NSWLEC 1069, Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122, and Hendry & anor v Olsson & anor [2010] NSWLEC 1302. In these matters various trees were found to be part of a hedge, or not part of a hedge, based on conclusions about whether they were planted or self-sown and whether their planting arrangements satisfied the characteristics of being a hedge.

Findings 40I have reviewed all of those judgments and do not find them contradictory. Ms Pearman submits that Grantham demonstrates that the Court has accepted, at least on one occasion, that a tree does not have to be planted but may be self-sown. At [27] Fakes C stated that "...whilst the plant could be self-seeded there is inconclusive evidence that it is". The Commissioner also noted that the circumstances of the matter before her were "...very different to the circumstances described in Hendry v Olsson". 41Ms Pearman pointed to other sections of the Act where terms such as "situated" (s 14B) are used instead of "planted", however I do not see that this detracts from the intended meaning of the word "planted" at s 14A(1)(a). Furthermore, even if I were satisfied that the Turpentine was planted, the principal reason that it fails the test at s 14A(1)(a) is that I am not satisfied that it forms part of a hedge. 42Decisions under the Act are essentially merit decisions. As I have already stressed above, at [25], each case that comes before the Court has its own circumstances and each must be assessed on its merits. In Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336, Fakes C discussed at [23]: Whilst the Act does not specify that the trees must be of the same species or planted on the same level, there must be a perception that the trees form a hedge in 'the ordinary English understanding of the word'. In my opinion, trees 4, 5 and 6 are individual specimen trees planted (or self-sown) as individuals over many decades. The degree of separation, the range of species and their relative ages would not, in my opinion, lead the 'reasonable person on the street' to conclude those three trees formed another hedge. 43Similarly, I do not accept that the 'reasonable person on the street' would see the Turpentine as part of the hedge. 44As my view on this matter remains as before, the Turpentine does not meet the jurisdictional test. Consequently I cannot make the new consent orders brought to me yesterday. Orders regarding the trees will therefore remain consistent with the earlier consent orders presented by the parties - orders for which I find the Court does have jurisdiction and that would be appropriate. 45We now turn to the issue of replanting. At the initial hearing the further directions of the Court allowed for the applicant to prepare a planting plan. However only two trees are to be removed, both semi-mature palms, one of which is only to be removed in part, being one stem of a multi-stemmed tree. There is little need for replanting. As Ms Pearman stressed yesterday the aim of the act is for quick and efficient resolution of matters. Now that I see no need for replanting the direction to file a planting plan is vacated. Consequently the matter is finalised and the final orders will be those consented to by the parties at [35] above. A further order to ensure access during pruning works is also required. 46The orders of the Court are: (1)The application is upheld in part. (2)The directions made at the hearing of 4 June 2012 are vacated. (3)The applicants are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with appropriate insurance to remove T11 and the largest stem of T14 within 30 days of the date of these orders. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The respondents are to provide all access necessary for the works in (3) on reasonable notice and during reasonable hours of the day. (5)The respondents are to engage a suitably qualified arborist (minimum AQF Level 3) to periodically (annually or as required) prune T4-T9 and T12-T20, including the remaining stems of T14, to remove fronds that overhang the applicants' property and that obstruct the view, in such a way that the trees' ongoing vigour and condition are not adversely affected. The works are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. The initial pruning is at the respondents' expense. The cost of subsequent pruning is to be shared equally by the parties with the applicants paying the respondents 50% of any receipted invoice for the pruning works within 7 days of receiving such an invoice, if that invoice is provided to them within 14 days of completion of the works. (6)The applicants are to provide all access necessary for the works in (5) on reasonable notice and during reasonable hours of the day.

D Galwey 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 2012