Martyn v Stuart

File Number(s): 2025/164645

Publication restriction: Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: Mr Martyn (‘the Applicant’) applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Ms Stuart (the Respondent) to prune the hedge located between the properties. The trees are located close to the Respondent’s rear and side boundaries of 48 Lake Street Merimbula. The Applicant owns 26 Wyeebo Street Merimbula, and shares a rear boundary with the Respondent.

2. The Respondent enjoys the privacy the hedge provides for the rear yard and dwelling and seeks to maintain the hedge at 3.5 metres above ground level. The hedge is mainly comprised of Pittosporum trees that are mature and have previously reached a height of generally between 3 and 5 metres.

3. The Applicant submits that hedge is severely obstructing the views to the south from his property and seeks orders for regular pruning.

4. The application is made pursuant to s 14B Pt 2A of the Trees Act.

Jurisdictional requirements – Part 2A

5. In Pt 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 at [17]-[22].

Do the trees form a hedge?

6. The first test is s 14A(1), that is, are the trees planted along the southern boundary of the Respondent's rear yard, a hedge for the purposes of the Act? Section 14A(1) states:

14A Application of Part

(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).

7. The trees were planted more than 10 years ago next to each other forming a hedge, now reach a height of about 3 metres in height, s 14A(1) is satisfied. The trees continue to grow and increase in height.

8. The next step is to assess the severity of the obstruction of all or any of the views from the Applicants' dwelling as a consequence of any or all of the trees in the hedges. Section 14E(2)(a)(ii) states:

14E Matters of which Court must be satisfied before making an order

…

(2) 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.

9. The Applicant's residence is upslope from that of the Respondent. The dwelling has rear living areas designed to capitalise on views towards the ocean to the south.

10. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (‘Tenacity’).

11. The first three steps of the four step process are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

12. In applying those principles to the hedge, the view in contention spans approximately 120 degrees of ocean and river.

13. Considering the third step of Tenacity, the extent of the impact for the whole of the property is severe. The views from the rear living area and the adjacent deck, which is included as a living area under the Act, are blocked by the hedge. The hedge has previously been pruned by the Respondent over the years. The Applicant is seeking continued and regular pruning of the hedge to maintain water views of the ocean and river.

14. Though the Court sets a high bar when considering the word “severe”, I am satisfied the hedge, if not adequately and regularly maintained, are severely obstructing a view from a dwelling situated on the Applicant’s land, and the Trees Act is therefore engaged (s 14E(2)(a)(ii)).

15. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

14E Matters of which Court must be satisfied before making an order

…

(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.

16. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

17. The hedge is located in the Respondent’s property along the rear boundary and act as a privacy screen (subs (a)).

18. The hedge was planted approximately more than 10 years ago (subs (b)).

19. The hedge has grown and is maintained to a height of between 3 and 5 metres since that time (subs (c)).

20. The hedge is not protected by Council’s Tree Management controls under its Development Control Plan, and Council consent for pruning is not required (subs (d)).

21. The hedge is likely to make a minor contribution to biodiversity (subs (g)).

22. The hedge is not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity (subs (i)).

23. The hedge can normally be regularly pruned without unduly affecting their health or function. Pruning may result in thicker growth, and thus enhance the hedge’s utility for the Respondent (subs (k)).

24. Being higher up the hill, and on the upper level, the Applicants veranda and rear living area overlooks the Respondents rear yard, and the hedge contributes significantly to providing privacy for the Respondent (subs (l)).

25. The hedge has previously been pruned by the Respondent. The continued pruning arrangements remain in contention, particularly as to the maintenance of a maximum height of the hedge so as not to impact views of the Applicant (subs (n)).

26. The hedge is evergreen (subs (p)).

27. The water view to the south of the Applicant’s property is severely affected by growth of the hedge (subs (q)).

28. The obstructed view is from a living room and rear elevated deck, and the view is severely restricted by the hedge without regular pruning (subs (r)).

29. In summary, pruning of the trees will be ordered so the views are retained for the Applicant (to a height of 3.5 metres above ground level), while retaining most of the trees benefits of privacy for the Applicant. This will result in little loss of amenity for the Respondent, and significant benefit for the Applicant.

Discretionary matters – section 12

18. In making an order, the Court considers relevant matters in s 12 of the Trees Act. Factors already considered in s 14F will not be duplicated.

19. The hedge can normally be regularly pruned to maintain height without noticeable impact on their health and function. Bushier growth normally develops on the stems below the pruning cuts, potentially enhancing the Respondents privacy (s 12(b2)).

20. The hedge contributes significantly to providing privacy for the Respondent, particularly in the rear yard, and kitchen area. It also adds to garden design and the amenity value of the garden (subs (b3)).

21. There is nothing other than the hedge that is likely in the near future to cause damage to the Applicants’ property. Both parties are seeking orders to resolve the dispute over the ultimate height of the hedge and responsibility for pruning (subs (c)).

Conclusion

19. The impact to views is currently severe. Pruning of the hedge has been undertaken previously in order to maintain views. The benefits the hedge provides in terms of privacy will not be much affected, as long as a pruning program is employed which maintains the screening benefit the hedge provides for the Respondent, while maintaining a maximum height to maintain views from the Applicant's property.

20. When an application is successful, the cost burden for carrying out orders normally falls on the Respondent, and in this case I see no reason to vary this approach.

Orders

21. The Orders of the Court are:

22. Within 12 months of the date of this judgment, the Respondent is to engage and pay for an AQF level 3 arborist to prune trees numbered 1 to 20 along the rear and side boundaries to a height of 3.5 metres above ground level.

23. The pruning work in (1) is to be undertaken once every 12 months for the life of the trees.

24. Pruning is to be in accordance with the AS4373-2007 Pruning of Amenity Trees.

25. The pruning work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

……………………….

P Nichols

Acting Commissioner of the Court

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