Marton v Pontin

Land and Environment Court (NSW)|2021-07-21

Background to the application

Stephen Marton ('the applicant') has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders relating to neighbouring trees, on the basis that they severely obstruct his access to views and sunlight. He seeks orders for trees in hedges on the neighbouring Warriewood property belonging to Marina and Andrew Pontin ('the respondents'), to be pruned and maintained at 1.8 metres, and for other trees in the Pontins' garden to comply with conditions of their Development Consent.

Framework for this decision

The applicant made reasonable effort

Mr Marton explained that he spoke with the Pontins on a number of occasions, attempting to persuade them to prune their trees. When it was apparent that his efforts would continue to be fruitless, he applied to the Court. I am satisfied that his efforts to reach agreement with the Pontins were reasonable.

The trees are not planted to form a hedge

Part 2A of the Trees Act only applies to certain trees (s 14A(1)): (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).
The plan in Mr Marton's application shows 10 trees, T1-T10. In his application, Mr Marton lists the trees as Allocasuarina distyla (T1, T2 and T5-T8) and Banksia (T3, T4, T9 and T10). Peter Castor, consulting arborist of Tree Wise Men, assessed the trees and prepared an expert report for the respondents. Mr Castor found that trees T1, T2 and T5-T8 are Casuarina glauca (Swamp Sheoak) and trees T3, T4, T9 and T10 are Banksia integrifolia (Coast Banksia). Mr Castor measured tree heights: T3 and T4 were less than 2.5 metres tall, while the remaining trees were greater than 2.5 metres tall (3-6 metres tall). Mr Castor included a roughly marked up site plan showing the trees' approximate locations. Part of that plan is copied below. The trees are in the Pontins' rear garden, east of their dwelling. A corner of Mr Marton's dwelling can be seen to the north in this plan.
Mr Marton submitted that T1 and T2 form a hedge, with T3 and T4 planted later and extending that hedge, and trees T5-T8 filling in the hedge. T9 and T10 form a separate hedge.

Were the trees planted?

Mr Marton submitted that the trees were planted. He filed a statutory declaration (Exhibit D) from Grahame Pursehouse, a previous owner of the respondents' property. Mr Pursehouse stated that he planted two casuarina trees "…about 2 metres apart on the north east boundary of my (then) property …parallel to the boundary …sometime before 1999". Mr Marton submitted that these were trees T1 and T2. Mr Castor was of the opinion that apart from T3 and T4, which were planted by the respondents, all trees were likely to be self-seeded rather than planted.
Mr Castor's opinion is the more learned one, but if I give Mr Marton's submissions some weight, I could accept that T1 and T2 might be planted. T3 and T4 were certainly planted. Mr Marton made little in the way of submissions regarding T5-T10. I accept Mr Castor's finding that T5-T10 were probably not planted by human hand.

Do the trees form a hedge?

The wording at s 14A(1)(a) of the Trees Act limits the application of Pt 2A to trees that are planted so as to form a hedge. This requires an intent to form a hedge at the time of planting, and the result in the present that they form a hedge: Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28].
The Trees Act avoids any attempt at defining a hedge, but the many cases that have come to the Court under Pt 2A of the Trees Act have established a concept of what type of planting might form a hedge, and what might not. Generally, there is some uniformity to the planting, perhaps with regular spacings between trees, the use of a single species or a pattern of mixed species, and foliage that forms a screen. Below I copy a photo (Photo 21 of Exhibit E) provided by Mr Marton. Tree T1 is to the very left, T2 close to centre, with T5-T8 between those two. The smaller banksias T3 and T4 are in the foreground in the right half of the photo, with the taller banksias T9 and T10 behind. To my eye, none of these trees is planted so as to form a hedge.
Mr Marton has not demonstrated to the Court that any of these trees were planted to form a hedge. Even when asked to write a statutory declaration, Mr Pursehouse did not suggest the trees he planted, that might be T1 and T2, were planted as a hedge. They were, according to Mr Pursehouse, and still appear to be, about 2 metres apart. Other sheoaks T5-T8, between T1 and T2, do not appear to form a hedge now, and as Mr Castor found, were unlikely to be planted. While a hedge might only require two trees, T9 and T10 do not appear hedge-like in the photograph above, nor in other photographs.
At the hearing, Mr Marton unsuccessfully sought to rely on examples of sheoaks being sold or used as hedges. He had not filed these documents earlier within the timeframes set for evidence in these proceedings. His case was not disadvantaged by this, as he was able to make submissions to this point and, relying on my own arboricultural expertise, I accept the validity of those submissions. However examples of a general nature, demonstrating the possibility of using this species as a hedging plant, do not demonstrate that the trees in this application form a hedge.
The trees in Mr Marton's application do not provide a solid barrier (see Bonner v D'Arcy [2021] NSWLEC 1329 at [10], [11]), have not been maintained in a hedge-like fashion, and, in "an ordinary English language understanding of the word", would not be perceived to be a hedge (see Wisdom v Payn [2011] NSWLEC 1012 at [45]).
As Mr Marton pointed out, trees planted at different times can be found to form a hedge, for instance when trees are added to extend or fill in an existing hedge (Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215 at [15]). In the current proceedings, however, I find that T1 and T2 were not planted to form a hedge, so later plantings such as T3 and T4 were not extending a hedge.
I also accept Mr Marton's submission that orders might be made for trees in a hedge that is more than 2.5 metres tall, even if some individual trees within the hedge might be less than 2.5 metres tall (Wisdom v Payn [2011] NSWLEC 1012 at [66]). However the jurisdictional prerequisite that the trees form a hedge still applies.
Mr Marton has not convinced the Court that any of these trees were planted with the intent of forming a hedge. On my analysis of the many photographs provided to the Court, the trees' form in the present is not hedge-like. I find that the trees are not planted so as to form a hedge, so Pt 2A of the Trees Act does not apply to these trees.

The trees do not severely obstruct a view

Should I be mistaken in finding the trees do not form a hedge, I have also considered their impacts to Mr Marton's views, which were the subject of extensive submissions.
Both properties back onto a low escarpment above Turimetta Beach. Windows at the back of these properties principally face just south of east, directly across the beach, taking in the broad ocean and sky view to the east. Narrabeen Headland can be seen to the south.
Views from Mr Marton's property are available from both levels of his dwelling. The main east-facing windows and balcony at the rear of his dwelling are V1 (upper floor) and V4 (ground floor) in Mr Marton's application. Angled windows (seen in the plan copied earlier) face to the southeast: V2 on the upper floor and V5 on the ground floor. Windows part-way along the southern wall of his dwelling are V3 (upper floor) and V6 (ground floor). Mr Marton provided many photographs showing views from these various parts of his dwelling. For context here, I include, firstly, a photo showing the view from V1, the upper floor balcony, with Narrabeen Headland, the beach, ocean and sky. If the camera turned further to the east (left), it would capture the broad vista of ocean and sky. The tops of trees T1 (left), T2 (right) and some of T5-T8 (between T1 and T2) can be seen beyond the balcony's edge. The second image shows the view from V2, the angled window facing southeast. I have cropped Mr Marton's photo so as to remove part of the dwelling's interior.
From V1 on the balcony, the photograph above shows only the southernmost part of the panoramic view. Even within this section of the view, the headland and beach can easily be seen. Trees obstruct the view of the lower part of the headland and some water-land interface at the base of the headland. In Haindl v Daisch [2011] NSWLEC 1145, Senior Commissioner Moore (as his Honour then was) and Acting Commissioner Hewett found at [26] that the view should be considered in its entirety, rather than sliced into separate components. "26 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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis."
Taking in the entire view from V1, the obstruction could not be considered 'severe'. It might be annoying to Mr Marton, but it is not severe. The mere presence of a view obstruction does not make it severe. 'Severe' is a qualitative term, but as with a quantitative measurement, it fits within a range. When assessing view obstruction, 'severe' might be considered within the range of terms used by Senior Commissioner Roseth at [28] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity'): "negligible, minor, moderate, severe or devastating." Roseth SC also acknowledged at [26] of Tenacity that some elements of a view might contribute more than others to its value, specifically mentioning the interface between land and water. Mr Marton argued that the headland is iconic, citing its use in a local company's advertisement. When I consider the extent of the water-land interface and headland view obscured by trees in the first image above, compared with what remains available, I find the trees' obstruction of the view is moderate at most, and certainly not severe.
In the second image, the upper part of T2 obstructs part of the water view. Mr Marton submitted that, when standing at the window, the tree obstructs the view of the headland. Ms Sims pointed out that the headland view would only be obstructed from a limited range of standing positions, while it could be seen from others. If a particular part of the headland might be obscured by the tree, she explained, one simply had to move around to see that part. Mr Marton responded that he "shouldn't have to dance around" to see the view. I regard the view from here as the whole view, including the principal view of the ocean, so I don't accept Mr Marton's argument that one must move around to see it. And, I accept Ms Sim's argument that only parts of the headland view are obstructed by trees, and if particular parts of the headland are to be seen a person can take a few steps one way or another. Considering this, I do not find the view obstruction from V2 is severe.
The view from V3 is a narrow view, roughly to the southeast, between the applicant's dwelling and the respondents' dwelling, from a bedroom or study that is approximately 9 metres from the back of Mr Marton's dwelling. The dining and living rooms are between this room and the back of the dwelling. Mr Marton provided the photograph below, taken from V3. It shows a view from this window is limited by its position in the dwelling and by the proximity of the respondents' dwelling. Most of the water view remains unobscured and the beach can be seen. Trees do not severely obstruct this view. Even if they did, this would be unlikely to justify orders. A view impact should be assessed in the context of the whole property, not just a particular affected view, and this should consider the use of particular rooms (Tenacity at [28]). Having observed the panoramic view available from living rooms at the back of Mr Marton's dwelling, the obstruction of a view from a side window of this bedroom or study would not give the Court reason to make orders.
Moving down to the ground level, the three view points V4-V6 are directly beneath V1-V3 respectively. The principal view from V4, a bedroom window and outdoor terrace, is to the east, unobstructed by trees. As with the view from V1, trees partially obstruct the headland view, but in the context of the whole view I do not consider this to be severe. The view from V5, a rumpus room window angled to the southeast like V2 above it, is partially obstructed by trees. The obstruction is greater than from V2 due to the lower vantage point. Ms Sims took the Court to Mr Marton's photo from V5 (Photo 40, Exhibit E), pointing out the slope of the land, and the land obstructing any beach view from here. Ms Sims submitted that trees obstruct only some sea and sky view, but not severely. In the context of available views from the dwelling, she argued, this is not a valuable view. Mr Marton said the trees obstruct, from V5, views of the southern beach, the water-land interface, and rock platforms. This is not so in Photo 40, but the photo is taken from within the room some distance back from the window, so it is possible that some of those elements Mr Marton describes might be obscured when standing at the window. However, I note that from any standing point in this part of the room the principal view to the east also remains available. Obstruction of some elements of such a panoramic view is not, in my mind, severe. V6 is the angled window of a guest room on the southern side of the dwelling. The available view is similar to that shown from V3, above. Due to the lower vantage point here, trees now obstruct more of the sky view, but the obstruction is not severe. Again, in my mind, the expectation of maintaining an unobstructed view from this window seems unreasonable, even if Mr Marton finds it desirable.
In the course of his submissions, Mr Marton cited many other cases to support his application. I recorded those citations and checked them all, but I find most are not relevant to my decision here, and it would be an unnecessarily onerous task to respond to each one. For instance, Mr Marton insisted the situation in Wise v Hickey [2019] NSWLEC 1524, where orders were made to remove some trees in a hedge, was similar to his situation, especially the view obstruction. The feature shared in that matter was obstruction of a beach view including the land-water interface. Each case that comes before the Court has its own unique set of circumstances. Other matters provide useful guidance, but their outcomes cannot be copied like a template onto another set of circumstances. On my reading of Wise v Hickey [2019] NSWLEC 1524, it seems that trees obstructed a greater portion of the available view.

The trees do not severely obstruct sunlight

Mr Marton's application also sought orders on the basis that the trees severely obstruct sunlight to windows of his dwelling. At question 4 of Form G 'Tree Dispute Claim Details (High Hedges)' (Exhibit B), Mr Marton wrote: "In Summer, the first two to three hours of sunrise are currently obstructed to windows V5 and V6. See photo 4. With the current trajectory of T1, T2, T9 and T10, it is a matter of time before V2 and V3 will be blocked." Photo 4 (in Exhibit E) does not demonstrate that trees severely obstruct sunlight to a window. Mr Marton provided no other evidence to this point, and made no submissions to support it. I cannot be satisfied that trees are severely obstructing sunlight to his windows.

Conclusion

I find, firstly, that Pt 2A of the Trees Act does not apply to the trees in Mr Marton's application, as they are not planted so as to form a hedge. If Pt 2A did apply to the trees, I find, secondly, that they do not severely obstruct a view from Mr Marton's dwelling, nor sunlight to its windows, so the Court could not make orders. Lacking any jurisdiction to make orders, there is no need to consider matters at s 14F of the Trees Act, nor is there any need to consider Mr Marton's claims relating to development consent conditions for the respondents' property.

Orders

For the reasons set out above, the Court orders: 1. The application is refused. 2. The exhibits are returned, except for Exhibits A, B and 4.

Amendments 14 October 2021 - Amended jurisdiction to Class 2. 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: 14 October 2021

(2012) 190 LGERA 334

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