Maynard & anor v Mobbs & anor

The positions of the parties

1. The application and claim form (Exhibit A) identify three trees growing in the respondents' backyard along the common side boundary. From south to north on the diagram, Tree 1 (T1) is a mature Pittosporum rhombifolium; three metres away is a Cordyline australis (Cabbage Tree) labelled as T3; T2, an Acmena smithii (Lillypilly) is another metre or so to the north. T1 and T3 extend above the eaves of the applicants' dwelling, T2 approaches the eaves.
2. The applicants contend that these trees, in particular T1 and T2, severely reduce sunlight to east-facing upper storey windows (W1 and W2) of their children's bedrooms. The first applicant uses the southern-most child's bedroom as a study. They also submit that views of the ocean as well as district views are also completely obscured by the trees. Apart from reducing the overall height of the trees and having them pruned away from their property, the applicants seek the removal of branches of T2 located outside W2. The application claim form also notes that the trees restrict sunlight to ground floor windows W3 (kitchen) and W4 (family room).
3. In further information submitted by the applicants (Exhibit B), an additional three trees have been included. The addition of these trees amends the application. The respondents stated they had not received this material but after having some time to consider it, they raised no objections to the extra trees being included in the application.
4. The three additional trees are growing in the respondents' front garden (as defined by the location of a side gate) along the common side boundary. Tree 4 is a Callistemon viminalis (Bottlebrush); T5 is a Leptospermum petersonii (Lemon-scented Teatree) two metres to the north of T4; T6 is probably a Malus sp. (Crab apple) some four metres from T5.
5. The additional trees were included because of the applicants' are concerned about the potential height of these trees and the possibility of the trees completely obscuring district and water views from an upper storey front bedroom (identified as V3 from W3).
6. The respondents value the trees because they afford privacy to their property and screen and soften the bulk and scale of the applicants' two storey dwelling. The nominated windows directly overlook the respondents' rear and front gardens.
7. The respondents contend that the trees in question were at least the height of the eaves of the first storey when the applicants' purchased their property. They rely on a survey plan dated 19.02.2009, as well as photographs included in a Statement of Environmental Effects (SEE) and a Dilapidation Survey prepared for a development application they lodged with the council in 2009 for alterations and additions to their dwelling. Figure 16 in the SEE shows part of what may be W1 between T1 and T3; W2 is not visible behind T2. The respondents also rely on marketing material and photographs prepared for the sale of the applicants' dwelling prior to the applicants' purchase of it. This material does not include any mention of any ocean or water views from the property and includes photographs showing the respondents' trees outside W1 upstairs and the kitchen window downstairs.

The hearing and preliminary observations

1. During the on-site hearing I invited the applicants to satisfy me that the trees the subject of the application, are trees to which the Part applies. The applicants contend that the canopies intermingle and that the trees have clearly been planted as a screen along the common boundary.
2. In reserving my finding on this jurisdictional test and in order to fully understand the applicants' position, I had the benefit of viewing the nominated windows. I accept that the respondents' trees do severely obstruct sunlight into the two upstairs east-facing windows W1, and W2 and may obstruct whatever view may have been available when they purchased their property. The view said to have been obstructed by the respondents' trees, can be seen from the front and rear upstairs balconies. The view of the ocean is a distant blue sliver between the horizon and the built landscape. The view is also obscured by buildings and other trees on other properties. The view is across side boundaries from bedrooms. With the arboricultural expertise I bring to the Court I also agree that some selective pruning of the foliage outside W1 and W2 could be done in such a way to allow more sunlight to enter the rooms but not overly compromise the respondents' privacy.
3. However, the applicants have not provided any shadow diagrams or photographs taken by them of the views available to them when they purchased their property. This is an important consideration as the incorporation of Part 2A into the Trees Act was not to create a right to views or sunlight that an applicant didn't have when they purchased their property (see McDougall v Philip [2011] NSWLEC 1280). The applicants object to the survey plans tendered by the respondents as they assert the plans in the respondents' material differ from the plans held by the council and viewed by the second applicant. The applicants state that the respondents' plans show the trees to be 6m tall in 2009 rather than 5m tall. They also rely on photographs tendered by the respondents that, in their opinion, show that T1 and T2 were not severely obstructing sunlight or views when they purchased their property. In particular they rely on one of the real estate photographs, which shows clear sky between the respondents' Jacaranda (since removed) and their dwelling; which in their opinion, illustrates that the trees were not at eaves height.
4. When the view from W3 was inspected during the on-site hearing it was clear that trees 4, 5 and 6 are not currently severely obstructing the views from this window or sunlight to it.

Consideration

1. The first question to be answered remains: are the trees the subject of the application trees to which Part 2A applies?
2. The concept of being planted so as to form a hedge has been considered in a number of detailed judgments. In Johnston v Angus [2012] NSWLEC 192 Preston CJ provides a detailed analysis of the construction of subsection 14A(1)(a) of the Trees Act. At paragraphs [40]-[43] His Honour considers, amongst other things, the criteria relevant to the determination that the trees the subject of an application form a hedge, and were planted so as to form a hedge. These criteria include proximity, planting arrangement, species, relationship between species if the planting is a mixture of species, and function of the planting. Relevantly at [43], the age is relevant as a tree planted a number of years before/after other trees could not have been planted so as to form a hedge with such trees as they were not in existence. Part 2A does not apply to single trees.
3. So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge". Viewing the spacing and arrangement of the trees at ground level from a respondent's land assists in this determination.
4. As the trees were planted by someone other than the respondents, it is not possible to explore the purpose or intent of the planting. It is not possible to establish whether the trees were planted at the same time or over an extended period. Further, the trees are all different species and the Cordyline has a distinctively different form. The distances between the trees are not uniform as they generally would be if the intent had been to form a hedge. With the horticultural expertise I bring to the Court, I consider the trees to have been randomly planted as individual specimens around the edge of the lawn. This is a very common form of landscaping whereby people seek to maximise an area of lawn or open space and create some form of screening from neighbouring properties. The trees removed by the respondents, a Jacaranda and one or more conifers, in my view reinforces the making of an eclectic garden rather than the planting of a 'hedge'. I accept the canopies have intermingled, however, as found in a number of other cases, this in itself does not meet the requirements of s 14A(1)(a) -(see for example Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339).
5. Having found that the trees are not trees to which Part 2A applies, the Court has no jurisdiction to make any orders for any intervention with them under the Trees Act. While some preliminary observations have been made in [15] above, they have not been assessed against the considerations in s 14E(2)(b) and s 14F as the Court has no jurisdiction to do so and thus it cannot be implied or assumed that further consideration of the matter would have resulted in the orders sought by either party.
6. Therefore the only order that can be made is: 1. The application is dismissed.

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Judy Fakes 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: 04 August 2017