Macourt v Baudinet & anor

Clarification of the application

1. The application made to the Court included obstruction of both sunlight and views caused by the trees. It sought orders only for the removal (not pruning) of the trees. It showed six trees (at Question 3 of the Part 2A application form) to be the subject of the application.
2. The applicant was granted leave at the hearing to amend the application to propose orders for pruning the trees to restore access to views in the event that no orders are made for removal. The applicant also clarified that the application regarding sunlight obstruction was not pressed.
3. The respondents' evidence included a report by Mr Guy Paroissien, horticulturist and arborist, that detailed ten trees on the respondents' property. It was convenient to use the tree numbering in this report as the report included a numbered plan showing tree locations, which the report of Mr Andrew Burns (architect), accompanying the application, did not. Using that numbering, Mr Pickles SC, Counsel for the applicant, clarified at the outset of the hearing that the trees being the subject of the application are:

• Tree 1: Cabbage-tree Palm (Livistona australis)
• Tree 3: Indian Hawthorn (Raphiolepis ?indica)
• Tree 4: Blueberry Ash (Elaeocarpus reticulatus)
• Tree 5: Crape Myrtle (Lagerstroemia indica)
• Tree 8: Star Jasmine (Trachelospermum jasminoides)
• Tree 9: Firespike (Odontonema cuspidatum)

1. Other trees were not included because the applicant considered them to be physically separate from these trees and not part of a hedge, or less than 2.5 metres tall.

Before the Court can make orders

1. The Court's jurisdiction to make orders is set out at s 14E of the Trees Act. 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. (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, and (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.

Reasonable effort made by the applicant (s 14E(1)(a))

1. Ms McKelvey says that, prior to receiving the application, the only correspondence received by the respondents was a letter from Dr Macourt's solicitor. Ms McKelvey contends that this does not comprise 'reasonable effort' by Dr Macourt to reach agreement.
2. In Ball v Bahramali & Anor [2010] NSWLEC 1334, at paragraphs 38 to 45, Fakes C discussed what might be reasonable effort, and when such effort might be made. The ability of the Court to make orders, rather than the ability of a person to make an application, is the subject that is conditional on the applicant having made some effort to reach agreement. The Court cannot make orders until it has heard the matter, so the applicant has until the time of the hearing to make reasonable effort.
3. Fakes C also discussed other difficulties parties might have communicating, including the oft-fraught relationship between neighbours involved in tree disputes, where reasonable discussions or attempts at agreements are simply not possible. The evidence before me demonstrates that the parties in this matter have had difficulties resolving their differing views at other times on matters directly related to the issues at hand here.
4. In making submissions regarding the respondents' maintenance of their trees, Ms McKelvey stated that the respondents have pruned their trees on several occasions over the years in response to Dr Macourt's requests, although the extent of pruning may not have been to Dr Macourt's satisfaction. This would suggest some effort on the part of Dr Macourt. In light of this, I accept that a letter written through a solicitor amounts to reasonable effort.

Notice

1. It is not contested that the applicant has given notice of the application as required by s 14E(1)(b).

Do the trees severely obstruct a view?

1. The parties disagree regarding the extent to which neighbouring trees obstruct Dr Macourt's views (s 14E(2)(a)(ii)). Where Dr Macourt finds the obstruction is severe, the Baudinets think it is only moderate. Dr Macourt engaged Mr Burns, an architect, to provide evidence regarding views from his property and the trees' obstruction of these. The Baudinets engaged Mr Mead, a town planner, to provide evidence. Both looked at views from several locations in the Macourt dwelling.
2. The parties also disagree on the balance of view obstruction versus other matters considered by the Court, namely those listed at s 14F.
3. I will return to these matters below after considering the application of Part 2A of the Trees Act.

Do the trees fall within the jurisdiction of the Act (s 14A)?

1. In an application under Part 2A, trees must meet the criteria at s 14A(1) of the Trees Act. 14A Application of Part (1) This part only applies 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).

The parties' views regarding s 14A

1. In his affidavit, Mr Baudinet stated that, when he planted the trees, he did not plant them as a hedge. Ms McKelvey argues that this more informal style of planting is a copse, and while a copse is not excluded from also being considered a hedge, this particular planting is not a hedge.
2. Mr Pickles argues that subsection (a) only requires the result that the trees form a hedge, rather than intent to do so at the time of planting.
3. Mr Pickles says that, while the trees are not planted at regular spacings, or in a straight line, they are planted close to the boundary, and like many boundary plantings they form a hedge.
4. Ms McKelvey says not all boundary plantings are hedges. She contends that the combination of factors (non-linear planting, irregular spacing, the use of multiple species with broadly different characteristics) leads to the conclusion that the trees do not form a hedge, even if any one of these factors alone is not a criterion for the definition.

Findings regarding s 14A

1. I accept Ms McKelvey's contention that the trees do not form a hedge, for the following reasons.
2. In Johnson v Angus [2012] NSWLEC 192 Preston CJ analysed the meaning of s 14A(1)(a), concluding at paragraph 28 that the requirement that the trees "are planted so as to form a hedge" applies at the time of planting and at the time of the hearing. That is, the intent at the time of planting must be to form a hedge, and the result must be that the trees still form a hedge.
3. The undisputed evidence of Mr Baudinet is that, when he planted the trees, he was not attempting to establish a hedge.
4. Even if there were some doubt about the intent of the tree planter, the trees are now grown and have a form and structural presence in the Baudinets' garden. As I've described above, there are several species of trees planted at irregular spacings in a non-linear form. In Wisdom v Payn [2011] NSWLEC 1012 Moore SC and Hewett AC say at paragraph 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." In my view, the Baudinets' planting would not be likely to be perceived as a hedge by people other than the applicants.
5. I find that the trees are not planted so as to form a hedge. Therefore, according to s 14A(1)(a) they are not trees to which Part 2A of the Trees Act applies, and the application will be dismissed.

Severity of the view obstruction

1. Evidence and submissions from both parties addressed the severity of the view obstruction that the trees cause. Because I have concluded that Part 2A of the Trees Act does not apply to these trees, I will address this succinctly, though I made extensive observations and notes during the hearing.
2. Dr Macourt contends that he has suffered a severe obstruction of views caused by the trees.
3. At the outdoor terrace, where there is a table with seats, the Crape Myrtle (Tree 5) obstructs the view of the Harbour Bridge, but the remaining view from here is unobstructed. From other areas of the terrace, including areas where it appears that the table and chairs could be easily relocated, views, including that of the Harbour Bridge, are unobstructed by the trees.
4. From the billiard room on the ground level, Trees 3, 4 and 5 obstruct the view of the Harbour Bridge, but the remainder of the view is unaffected.
5. Due to health reasons, Dr Macourt has mobility issues. As a result, he says, he spends more time in the dining room, avoiding the descent by stairs to the lower rooms at the rear of the house. He says his view of the Harbour Bridge form here is obstructed by the trees. I observed that the view from here is only available through windows in the top of the wall dividing the billiard room from this open living area. That is, a very limited view of the bridge is available from here. Furthermore, Dr Macourt sits at the head of the table, facing away from that wall. The limited view of the Harbour Bridge is obstructed by Trees 3, 4 and 5, but the remaining harbour and CBD views that are far more accessible from the head of the table are not obstructed by the trees. From other parts of the dining room, pillars and other structural parts of the dwelling also obstruct or restrict views of the Harbour Bridge.
6. On the first floor, there is no view obstruction from the terrace or the first bedroom. From the second bedroom, the palm (T1) obstructs the view of the Harbour Bridge, but views of the harbour and CBD are not obstructed.
7. From the second floor living area, the palm (T1) partially obstructs the view of the Harbour Bridge, but views of the harbour and CBD are not obstructed.
8. From the bedroom on the upper floor, there is no view obstruction.

Consideration of relevant matters at s 14F

1. I have found that Part 2A of the Trees Act does not apply to these trees, but if it did apply I would be required to consider a range of matters at s 14F of the Act, including: (q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view, and (r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.
2. Having discussed the various views above, I conclude that extensive views remain from all the view points in the application, even if parts of them are obstructed. Viewpoints from which neighbouring trees obstruct a view of the Harbour Bridge are not necessarily the main viewing points in the dwelling, and other viewing points remain accessible. As a result, I am not satisfied that the view obstruction caused by neighbouring trees is severe.

Respondents' privacy and landscape

1. From within the respondents'' property the trees provide some privacy and contribute to the landscape value of their rear garden. Were the view obstruction severe, the trees' landscape value would be a significant consideration, as 14E(2)(b) of the trees Act requires that the severity of the obstruction must outweigh "any other matters that suggest the undesirability of disturbing or interfering with the trees" before orders can be made.

Conclusion

1. On the basis of the above, I find that the trees are not ones to which Part 2A of the Trees Act applies, as they are not planted so as to form a hedge. Furthermore, were they planted to form a hedge it is unlikely that I would make any orders for their pruning or removal, as I do not find that the severity of the obstruction would justify making any orders, once all relevant matters have been considered.

Orders

1. The orders of the Court are: 1. The application is dismissed.

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D Galwey Acting Commissioner of the Court

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