Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor

Framework

1. Despite this single judgment, each application must be determined separately on its own merits. Considering the issues in dispute between the parties, and the framework of Part 2A of the Trees Act, for each application I must determine:

• Are the trees planted so as to form a hedge (s 14A(1)(a))?
• Do the trees rise to a height of at least 2.5 metres (s 14A(1)(b))?
• Are the trees severely obstructing sunlight to a window of the applicant's dwelling (s 14E(2)(a)(i))?
• Are the trees severely obstructing a view from the applicant's dwelling (s 14E(2)(a)(ii))?
• Does the severity of any obstruction of sunlight or views outweigh reasons to avoid interfering with the trees (s 14E(2)(b))?

The trees

1. Between them, the four separate applications generate an unnecessarily complex picture of the vegetation on the Taylors' property along their respective common boundaries. Along most of their south-eastern boundary the Taylors have a row of closely-planted Murraya paniculata (often known as Mock Orange or Orange Jasmine; here I will refer to it as 'Murraya'). At its north-eastern end is a clump of Golden Cane Palms. Further Murraya are planted along the Taylors' south-western boundary.
2. Various sections of the plantings affect different applicants, so they are labelled differently in each application. A section of vegetation called T1 in one application is called T3 in another. Continuing this system, or lack of one, would only lead to confusion so it was agreed at the hearing to give each section a new label to be used consistently in each application and in this single judgment. The table below shows these labels (letters) with the corresponding references in each application, as well as additional information referred to later in this judgment. Heights above ground level are taken from each application and are only estimates. Actual heights are based on my onsite observations and are shorter than 'height above ground level' because the plants are in a raised garden bed along the boundary, above the level of the respondents' lawn. In Judgment Description Height above R GL Actual Height Moss application Morgan application Toisuta application Slim application A Palms x9 stems T3 B Murraya 3.3 m 2.5 m T1 T3 D Murraya 4.5 m >2.5 m T2 E Murraya 6.3 m >2.5 m T1 T3 F Murraya 4.5 m >2.5 m T2 G Murraya 6.5 m >2.5 m T1 T4 H Murraya <2.5 m T3 I Murraya <2.5 m T2

1. With the Taylors' permission I took the photo below during the onsite hearing. It was taken in 'panoramic' mode to include most of their southern boundary, so gives a slightly distorted view. I have added the labels to indicate each section of the hedge along this boundary. Section 'I' is along a separate boundary.

The onsite hearing

1. On 2 April 2019 the hearing began at the Taylors' property before proceeding to each applicant's property. Ms Morgan, Ms Toisuta and Mr Slim were granted leave to have Mr Moss act as their agent. Mr Morgan, counsel for the Taylors, presented a rough chronology of events that was unchallenged.

Are the trees planted so as to form a hedge?

1. The only application claiming obstruction of views and sunlight by the Golden Cane Palms (labelled 'A' above) is Mr Moss'. He says they form a hedge, while the Taylors say the palms do not form a hedge. I find that the palms are not a hedge for the following reasons: the palms are growing in a clump without any linear pattern to their planting; and they do not give the visual impression of a hedge. This element of Mr Moss' application is therefore dismissed and the palms are excluded from all following consideration of obstruction to sunlight and views.
2. The Murraya along the Taylors' south-eastern boundary has, according to the applicants, been planted at various times. The Trees Act only permits applications to be made where groups of two or more trees "…are planted (whether in the ground or otherwise) so as to form a hedge" (s 14A(1)(a)). In Johnson v Angus [2012] NSWLEC 192 the Chief Judge shed some light on this requirement at [19]-[29], finding at [28] that there is "…a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present."
3. Some of the planting events of the Murraya were apparently separated over time, but the result, in appearance, is a single hedge, despite some variation in height along the hedge.
4. Plants added later to extend one end of an existing hedge, or to fill gaps within it, are planted so as to form a hedge: the same hedge as formed by the existing plants. This might be the intention at the time of planting, as it appears to be here, and may persist to the present, as is certainly the case here. Despite the various planting times and the changes in height of the Murraya along the Taylors' boundary, the plants form a continuous row along the boundary and I find they form a single hedge ('the hedge'). Nevertheless, the various sections impact differently each of the four townhouses.

Do the trees rise to a height of at least 2.5 m above ground level?

1. The Taylors did not question that each section of the hedge was at least 2.5 metres tall, but I observed some sections to be less than 2.5 metres in height, from the base of each tree in the raised garden bed. However this does not prevent all trees being considered as part of the one hedge; nor does it prevent orders being made for any part of the hedge if other jurisdictional tests are met. In Wisdom v Payn [2011] NSWLEC 1012, Moore SC (as his Honour then was) and Hewett AC found at [66]: "As a consequence, four of the trees, T4 through to T7 satisfy the jurisdictional test as to height. Although trees T2, T3 and T8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual."

Are the trees causing a severe obstruction of sunlight or views?

Moss v Taylor

1. As discussed earlier, the palms (A) do not form a hedge.

Sunlight

1. Regarding the obstruction caused by section B of the Murraya, Mr Moss' submissions focussed on the loss of sunlight in the future. However, I must be satisfied that the trees cause a severe obstruction at the time of the hearing. They do not, and Mr Moss did not suggest otherwise.
2. Mr Moss submitted that section C of the hedge obstructs sunlight to his windows. We viewed the situation during the hearing. In the absence of any shadow diagrams, I have assessed the likely extent of the obstruction based on observations and photographs. I accept that some afternoon sunlight is obstructed to Mr Moss' downstairs windows (living area) during winter. The windows face slightly west of north. The extent and duration of this obstruction seem likely to be limited.
3. The Taylors submitted that the sunlight obstruction is an assertion only, opining that there are no shadow diagrams or other evidence.
4. In the absence of any further evidence showing otherwise, I cannot be satisfied that the obstruction caused by the trees is severe.

Views

1. Here, as for all four applications, the potential views include Mort Bay, the heritage landscape of Balmain and a broad area of sky.
2. From the living room windows downstairs, some water views remain. Overall views of Mort Bay and the landscape might be obstructed, but this would be the case without the plants in the hedge, as other objects obstruct these views, including dwelling roofs and plants on other properties. I do not find the Murraya causes a severe obstruction of the view from here.
3. Moving upstairs to the bedroom, section C obstructs part of the view but, as I found downstairs, most of the potential view in that direction is obstructed by other objects, so the hedge itself does not cause a severe obstruction.

Outcome

1. As I have not found that plants in the hedge severely obstruct Mr Moss' access to sunlight or views, the orders he seeks will be refused.

Notice of Motion

1. Some time after the hearing, where the decision had been reserved, Mr Moss filed a Notice of Motion with the Court seeking to reopen his matter on the grounds that he had managed to locate new evidence that would be relevant to my decision. At the onsite hearing I explained to Mr Moss that the Court is required to consider, among other discretionary matters if a severe obstruction of sunlight or views is found, what extent of the view was available at the time he purchased his property. I then adjourned the hearing for a short time to allow Mr Moss to contact people who might send him via email or message any photos that would assist the Court.
2. Mr Moss' Notice of Motion was triggered by the later discovery of some photos on his father's tablet device. Mr Moss argued that these photos, which had not been provided during the proceedings, would show that his submissions regarding the hedge's height in 2017 should be preferred over those of the respondents. Mr Moss had also obtained additional affidavits that he said would further support his case.
3. Having heard Mr Moss' arguments for reopening his case, Mr Morgan opined that the Court should not encourage such a course of action, which has already cost the Taylors, let alone the additional expense should the case be reopened.
4. I determined to refuse leave to reopen. During the Department of Justice and Attorney General's 2009 Review of the Trees Act, the objectives of the Trees Act were repeated several times, including on p 11: "… its objective of a simple, inexpensive and accessible process for resolving disputes between neighbours about trees."
5. Mr Moss is a self-represented applicant. The Court provides considerable assistance to the self-represented litigant through resources on its website and support desks at the Court. During the onsite hearing, Mr Moss was provided with an opportunity to collect some further evidence. However. it would be unfair to the other party to provide a party one or more opportunities, after the case is heard, to gather and present evidence they feel they overlooked in preparing for the hearing. As the applicant, Mr Moss has determined the timing of his application with the ability to collect all evidence prior to filing, unlike a respondent who has a limited timeframe for gathering evidence. Considering that Mr Moss had sufficient time to prepare his own application and to assist the other three applicants with theirs, I do not see that he has been deprived of the opportunity to gather evidence.
6. Based on my findings above, it is now apparent that my refusal to reopen has not affected the outcome in Mr Moss' application. His additional evidence was to support his claims about the height of the hedge, and extent of his views, at the time he purchased his property. This would be a matter I would need to consider only had I found a severe obstruction of his views, which I did not. Without the Court's jurisdiction being enlivened at s 14E(2), there is no reason to consider discretionary matters at s 14F.
7. Mr Morgan raised the matter of costs involved for the Taylors in responding to the Notice of Motion. Commissioners of the Court lack the power to order costs, so if the Taylors wish to pursue costs they will need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.

Morgan v Taylor

1. Ms Morgan's application concerns sections C, D and E of the hedge. She said the taller sections C and E obstruct sunlight to her living room windows downstairs and views from windows of the living room downstairs and the bedroom upstairs. She claimed that section D of the hedge obstructs views from the living room windows downstairs.

Sunlight

1. Without the assistance of any shadow diagrams, assessment of sunlight obstruction again relied on observations and photographs. I accept that trees in sections C and E obstruct some sunlight to the living room windows during winter, however on the limited evidence, I do not find this obstruction is severe.

Views

1. Trees in sections C and E obstruct most of the water views available from the living room window downstairs, and approximately 50% of the water view available from the bedroom window upstairs. The view from the living room is only partly obstructed by other objects such as a dwelling roof and another tree. When standing in the living room, most of the view loss is caused by trees in the hedge - it is severe.
2. Ms Morgan has owned her property since 1995. Based on the suggested planting dates of the Murraya, I accept that the impact of the hedge on her views has developed mostly during the period of her ownership.

Toisuta v Taylor

1. Ms Toisuta's application concerns sections E, F and G of the hedge. Her application claimed trees in all three sections cause a loss of views from her living room downstairs, and trees in sections E and G obstruct views from her bedroom upstairs. She claimed trees in section G cause a loss of sunlight to her living room windows.

Sunlight

1. Based on my observations, I accept that some obstruction of sunlight occurs during winter afternoons. However, without any evidence to show any greater loss of sunlight, I do not accept that the obstruction is severe.

Views

1. From the living room windows downstairs, the trees entirely obstruct the water views that would otherwise be available from here. Were it not for the trees, views would be extensive; there is no significant obstruction by other features. The trees also block a large part of available sky views from further back in the living room. This view of water, sky and landscape is the principal view from Ms Toisuta's dwelling. I find the overall obstruction is severe.
2. Ms Toisuta has owned her property since 1996, so the view obstruction has developed during her ownership.
3. From the bedroom window upstairs there is only minor view obstruction caused by the trees.
4. All three sections (E, F and G) require pruning and maintenance to restore and maintain the view from the living room.

Slim v Taylor

1. Mr Slim's application concerns sections G, H and I of the hedge.

Sunlight

1. Sunlight to Mr Slim's windows seems only slightly obstructed by section G. Without further evidence I cannot be satisfied the obstruction is severe.

Views

1. Section G of the hedge causes severe obstruction of the sky view from the living room. The obstruction caused by section H is minor, because of the obstruction already caused by a dwelling roof. There is no severe view obstruction from the kitchen windows further south.
2. Mr Slim was concerned of future view obstruction by section I, being more Murraya along a separate boundary toward the northwest. I do not consider that those plants are part of the same hedge. That section does not cause a severe obstruction at present, so I cannot make orders for that element of Mr Slim's application.
3. I also found the loss of water views from the bedroom windows upstairs to be severe.

Consideration of privacy and other matters

1. Having found that trees in the hedge cause a severe obstruction of views from the dwellings of Ms Morgan, Ms Toisuta and Mr Slim, I have then considered the matters set out at s 14F. Most relevant here is the issue of privacy for the Taylors.
2. The Taylors expressed their wishes to maintain their privacy. They want to prevent overlooking from all of the applicants' properties into their garden and swimming pool where they and their children spend time. One cannot see into the pool from within the downstairs living room of each applicant's dwelling. People are unlikely to spend significant amounts of time at the bedroom windows upstairs. I observed that most of the Taylors' privacy could be maintained by a hedge only a little taller than fence height.
3. Mr Morgan submitted that in this dense inner-city landscape not everyone will get views. I accept that, but I also find the same principle applies to privacy. While I understand the Taylors' desire to limit the potential for overlooking, it is perhaps unreasonable to expect total privacy in a backyard in the dense living environment of Balmain.
4. If pruned to a height that would restore Ms Morgan's, Ms Toisuta's and Mr Slim's views, the trees should remain healthy, viable and long-lived.
5. Having balanced the trees' impact on views with the likely impact on the Taylors' privacy if the trees are pruned, I find it reasonable to reduce the trees to a height a little above the top of the fence along the common boundary. Regular pruning will be required to prevent the trees growing back into the view line. Pruning twice per year would maintain a neat hedge and would not be unreasonable. Although the initial pruning is most required for the taller sections of the hedge, leaving the shorter sections unpruned would be problematic for two reasons: they would grow into the view lines, possibly leading to the need for further applications to the Court; and it would result in an uneven height along the hedge, reducing its overall amenity.

Conclusion

1. In any one of the three successful applications, where orders for pruning and maintaining the offending sections of the hedge are to be made, it would be reasonable to make orders for pruning and maintaining the entire hedge. Considering all three successful cases together, if orders were not applied to the entire length of the hedge, only short sections would remain unpruned, incongruously protruding above the majority of the hedge. The hedge is likely to contribute greater value to the Taylors' garden if it is a uniform height along the length of their boundary. Orders will therefore be made to prune all plants in the hedge along the Taylors' south-eastern boundary. Orders do not apply to any plants along other boundaries.

Proceedings 2018/361256 (Moss v Taylor):

1. As a result of the foregoing, the Court orders: 1. The application is refused.

Proceedings 2018/361296 (Morgan v Taylor); 2018/361328 (Toisuta v Taylor) and 2019/24260 (Slim v Taylor)

1. As a result of the foregoing, the Court orders: 1. The application is granted. 2. Within 30 days of the date of these orders, and then in May and November of each year (including November 2019), the respondents are to engage a suitably qualified and insured contractor to prune the hedge, being all Murraya planted along their south-eastern boundary, to a height no greater than 30 cm above the top of the boundary fence.

D Galwey 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: 15 May 2019