L'Estrange v Cunial

The applicants have made a reasonable effort

1. The applicants have been negotiating with the respondents for approximately 2 years, sometimes via their legal representatives, attempting to seek a satisfactory agreement over the height and maintenance of the trees. Although they have been unable to reach such an agreement, I am satisfied that they have made a reasonable effort to do so, a prerequisite before the Court can make any orders (s 14E(1)(a) of the Trees Act).

The trees severely obstruct a view

1. The applicants purchased their property in February 2021. In their application to the Court, they provided numerous photographs, many of which I rely upon to assist with this decision. Photos on p 39 of Annexure A to the affidavit of Catherine L'Estrange (23 May 2023) show the eastward view from their dwelling around the time they purchased their dwelling in February 2021. The ocean is part of that view, above other vegetated parts of the landscape visible above the hedge. Photos on pp 41 and 42 of the affidavit show the same outlook in November 2021. Photos on pp 59-61 of the affidavit show the outlook in January 2023. The photos of November 2021 and January 2023 demonstrate clearly that the trees had grown to such an extent that they obstructed almost the entirety of the landscape and ocean view available in the earlier photos.
2. Obstruction of a view by neighbouring trees is not enough, of itself, to justify ordering some interference with the trees. Before making orders, the Court must also be satisfied that:

• the trees are causing a severe obstruction of a view (s 14E(2)(a)(ii) of the Trees Act), and
• the severity and nature of the obstruction outweigh any reasons to avoid interfering with the trees (s 14E(2)(b)).

1. The first of these two prerequisites demands, by using the word 'are', that the obstruction is in the present, and that it is 'severe'. Whereas the Court once took the approach that 'the present' might be understood to mean 'at the time of the hearing' (for instance, see Tooth v McCombie [2011] NSWLEC 1004 at [14]), more recently the Court has followed the interpretation applied in Steber v Job [2019] NSWLEC 1308 (Steber). In Steber, the use of 'are' at both arms of s 14E(2)(a) of the Trees Act was understood as the present progressive tense, pertaining to a generally continuous situation (a view obstruction), even if that situation might not be occurring at the moment (the time of the hearing). As explained in Steber, this requires evidence that a view obstruction might be considered ongoing: that it has been occurring and is likely to continue occurring.
2. The applicants have demonstrated that the obstruction to their view has been an ongoing state of affairs and is likely to continue. Prior to the onsite hearing, the respondents cut the hedge to remedy the view obstruction. However, the applicants' evidence shows that the respondents only pruned the hedge (the April 2022 pruning) following receipt of a letter from the applicants' legal representative, and again (April 2023 pruning) following receipt of a copy of the application to commence these proceedings. Had the applicants not taken these steps, it seems to me unlikely that the hedge would be pruned. The applicants' photos of November 2021 and January 2023 demonstrate the view obstruction were the hedge not pruned. The respondents submitted that they are willing to maintain the hedge at its current height, being a height at which the applicants agree the trees do not obstruct their view. The applicants submitted that this seems unlikely, given the respondents' past ongoing resistance to pruning and maintaining the trees at a reasonable height. I find the applicants' submission more persuasive. A matter that might have been reasonably resolved by a neighbourly discussion over the fence has progressed to Court proceedings. I find that the obstruction is ongoing; that is, the trees are obstructing a view.
3. The check at s 14E(2)(a)(ii) of the Trees Act further requires that the obstruction is 'severe'. To determine where the obstruction falls within a range of qualitative terminology, I rely upon the descriptors used by Roseth SC at [28] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity): "negligible, minor, moderate, severe or devastating". Roseth SC noted at [26] of Tenacity that "Water views are valued more highly than land views." Within the view available to the applicants, the ocean is the most highly valued component. Trees in the hedge grew to completely obstruct the applicants' view of the ocean, along with most of the view of the vegetated landscape. This view was the principal view available from the applicant's dwelling when they purchased it. Their living areas, where they and their guests are likely to spend most of their time, have large glass doors and windows facing to the east. When I consider these factors together - the value of the view, the extent to which it is obstructed, and the high-use areas from which it was available - I find that trees in the hedge cause a severe obstruction of the applicants' view.

The obstruction justifies orders being made

1. Having found that the trees are severely obstructing the applicants' view, the Court must determine whether (at s 14E(2)(b) of the Trees Act): (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.
2. The matters that the Court must consider at s 14F of the Trees Act provide guidance to weighing the reasons for and against making orders. I have considered all those matters and discuss below those that are relevant.
3. The trees grow along the common boundary, separated from the applicants' dwelling by their driveway. The parties have a separate dispute over the location of the common boundary that seems immaterial to issues in these proceedings.
4. The trees existed here when the applicants purchased their dwelling; however, as their photographs show, the trees were apparently less than 4 metres tall and did not severely obstruct their view at that time. The respondents pointed out the thick branches that were cut recently to reduce the trees' height to 3.5 metres, submitting that such thick branches must have been here for several years, predating the applicants' arrival. The respondents relied upon this to support their submission that the hedge was taller, and the applicants did not have a view, at the time they purchased their property. I accept some thick branches were recently cut, but the applicants' photos clearly show the available view in 2021, so it seems likely that in 2021 the hedge was maintained at a height perhaps slightly taller than its current height, but low enough to allow a view.
5. No evidence was adduced to demonstrate if pruning the trees to maintain them as a hedge would require consent from Byron Shire Council.
6. The trees contribute little to public amenity and broader environmental values. Most of their value is to the respondents, for whom the trees provide privacy, shading and cooling. Foremost to the respondents is the visual screen created by the trees, limiting overlooking to their dwelling from the applicants' higher dwelling. When the trees were taller, they prevented all overlooking. The respondents pointed out that the applicants can see some of the respondents' windows with the trees at their current height of around 3.5 metres. I noted that this was only possible when standing at the eastern edge of the applicants' deck. Even then, the windows that could be seen were ones that might also be seen from the street. To my mind, the trees' height at the time of the hearing did not lead to any unreasonable overlooking issue.
7. The respondents submitted that overland water flows from the applicants' property on to their own property. It used to flow into their pool until they created a diversion channel. They submitted that the trees help to address this problem, but provided no substantial evidence to support this proposition. I do not see this as a reason to avoid interfering with the trees. The respondents have themselves declared that they intend to maintain the trees at 3.5 metres. Whether the hedge height is 3.5 metres or some taller height should not substantially impact any positive contribution the trees make to intercepting overland water or soil stability.
8. As the respondents pointed out, other vegetation obstructs part of the applicants' ocean view. That vegetation is some distance from the applicants' property, forming part of the view rather than obstructing it.
9. Lilly pillies tolerate regular pruning required to maintain a hedge, even the relatively severe pruning recently undertaken by the respondents. The applicants originally sought orders for the hedge to be maintained at a height of 2.5 metres. With the recent pruning at 3.5 metres restoring their view, they amended the proposed hedge height to 3.5 metres.
10. The respondents have pruned the hedge, but only after receiving legal letters or the application to commence Court proceedings (see above at [10]). It seems to me that the parties could have reached a reasonable agreement providing for both the respondents' privacy and the applicants' views. Although the respondents expressed a commitment to do so in future, their unwillingness to do so until now sways me toward making orders for maintaining the hedge's height.
11. Earlier in this judgment, I discussed the nature of the view and the parts of the applicants' dwelling from which it was available. These factors, which led me to find that the view obstruction is severe, further tip the balance toward making orders to remedy the view obstruction.

Nature of the orders

1. I find that the respondents' lilly pilly hedge severely obstructs the applicants' view and that the situation justifies making orders for pruning the trees at regular intervals. The respondents submitted that the trees were 3.5-3.6 metres tall at the time of the hearing. The applicants proposed that the trees be maintained at a height of 3.5 metres. I will order that the trees be pruned at 3.8 metres so that it is only the regrowth from existing branches that is pruned in future, rather than these larger branches themselves. This height should remedy most of the view obstruction. To minimise the potential for ongoing dispute, the respondents will also remove any branches overhanging the common boundary. They submitted that they did this recently, from within their own property. Pruning should occur twice each year, as proposed by the applicants, to minimise regrowth into their view.

Orders

1. The Court orders: 1. The application is granted to the extent of the following orders. 2. During February and August of each year, beginning August 2023, the respondents are to engage a suitably experienced and insured contractor to prune all lilly pillies in the hedge along their western boundary, so that each tree is no taller than 3.8 metres in height, measured from its base, and so that no branches of these trees overhang the boundary. The works are to be done in accordance with Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 3. The respondents are to provide the applicants with one week's notice of each biannual pruning event. 4. The applicants are to allow any access necessary for each biannual pruning event to be completed during reasonable hours of the day.

Amendments 03 August 2023 - Amendment to cover sheet 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: 03 August 2023