Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor - [2019] NSWLEC 1215 - NSWLEC 2019 case summary — Zoe

NSWNSWLEC

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

[2019] NSWLEC 1215

Land and Environment Court (NSW)|2019-04-02

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-04-02

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Background to the application

Lisa and Geoff Taylor ('the respondents') live at their Balmain property overlooking the local heritage suburban landscape and Mort Bay with its ferries and activities. Around their dwelling on this north-facing slope they have a landscaped garden with a pool.
The respective owners of four neighbouring townhouses immediately upslope from the Taylors have each applied to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the Taylors' vegetation along their common boundaries to be pruned to gain or restore their access to views and sunlight.
For various reasons - the overlapping nature of the four applications and the Taylors' responses, the combined hearing, common issues, the characteristics of the vegetation, and the nature of the orders - it will be simpler to combine my decisions in the four proceedings in this one judgment.
The four applicants are:

Andrew Moss (Proceedings 2018/361256), who filed his application on 23 November 2018
Ruth Morgan (Proceedings 2018/361296), whose application was filed on 23 November 2018
Jennifer Toisuta (Proceedings 2018/361328), who filed her application on 23 November 2018
Ali Slim (Proceedings 2019/24260), whose application was filed on 23 January 2019.

These are not four completely isolated and distinctive applications. Rather, they are each presented with a uniform style of diagrams, common information and consistent arguments. In fact, the bulk of each application appears to be a cut-and-paste job, resulting in some applications having irrelevant information and proposed orders that cannot be made as they apply to vegetation not affecting the applicant's property. At the same time, conflicting statements are made in the various applications, such as those regarding the heights of sections of vegetation.

[3]

The trees

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.
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

[6]

Are the trees planted so as to form a hedge?

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.
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."
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.
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.

[13]

Notice of Motion

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.
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.
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.
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."
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.
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.
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.

[23]

Consideration of privacy and other matters

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.
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.
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.
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.
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.

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

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Legislation Cited (1)

Cases Cited (2)

Cited By (6)