Murray v Li

Framework of Part 2A of the Trees Act

1. Part 2A of the Trees Act both enables and confines the Court's jurisdiction regarding trees that obstruct sunlight or views. Some of the jurisdictional tests are debated by the parties in this matter, while others are without dispute. There is no need for me to address matters (e.g. zoning of the land at s 14A(2)) which are not disputed.
2. Part 2A of the Trees Act only applies to certain trees, as limited by s 14A(1). 14A Application of Part (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).
3. Ms Murray says the trees in her application form a hedge. Ms Li says they do not.
4. The application must concern trees that are on adjoining land and that cause a severe obstruction of sunlight or views (s 14B). 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
5. Ms Murray says the trees severely obstruct views from their dwelling; Ms Li says the obstruction is not severe.
6. Ms Li says her land does not adjoin the Murrays', as their properties are separated by a street. Ms Murray says the properties may not be literally adjoining, but they are neighbours, and the Trees Act's title suggests it should apply to them.
7. There are certain conditions that must be met at s 14E before the Court can make orders. 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (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.
8. There appears to be no dispute that the applicant has made reasonable effort to reach agreement, and that notice of the application was given.
9. Ms Murray says the obstruction is severe and should be dealt with. Ms Li says the obstruction is not severe, that pruning the trees would have little effect on the Murrays' overall view, and that there are other reasons not to prune the trees, such as the impacts that pruning would have on the trees' health.
10. If I find that the jurisdictional tests above are all satisfied, I can make orders as I see fit and as described at s 14D of the Trees Act. Before making any such orders, I must consider a range of matters set out at s 14F.

The trees

1. The hearing took place onsite, allowing observations of the trees and views. Trees 1-5 are in a row just inside Ms Li's western boundary. Trees 6-21 are in a row just inside her northern boundary. The trees are planted in straight lines. Two species, Italian Cypress (Cupressus sempervirens) and Dwarf Magnolia (Magnolia grandiflora 'Little Gem'), are planted alternately at regular spacings, along the two boundaries. The cypress trees are tall and narrow, between approximately 6 and 7.5 metres in height. They appear healthy. The magnolias are shorter, approximately 3.5-5 metres in height, with sparse canopies that appear stressed.
2. The aerial photo below is from Mr Williams' report (Exhibit D). The application does not apply to trees 22-25, which are on the naturestrip. The applicant's dwelling is on the left side of the photo, the respondent's on the right. The harbour is downslope to the east (right).

Are the trees planted so as to form a hedge?

1. The trees are all more than 2.5 metres in height, but the other requirement at s 14A(1) is that the trees "are planted so as to form a hedge". Ms Murray submitted that trees of only two species are planted at regular spacings in a linear fashion, and are planted to provide a privacy screen along the boundary for the respondents. She submitted that they were planted as a hedge and appear as a hedge.
2. Ms Li disagreed. Mr Jackson, the arborist engaged by Ms Li, was questioned during the hearing. He was of the opinion that the trees do not form a hedge because the interplanting of the smaller magnolias leaves gaps between the taller cypress. He said there is no dense, interlocking canopy as would be expected of a hedge.
3. Mr Tyrrell, the solicitor representing Ms Li, argued that the trees do not meet the criteria for a hedge provided in Johnson v Angus [2012] NSWLEC 192 and in Wisdom v Payn [2011] NSWLEC 1012. He submitted that the presence of two species in the rows, with the shorter magnolias interplanted between the cypress, creates separation between the upper canopies.
4. To compare the trees against the criteria in Johnson v Angus referred to by Mr Tyrrell, I include here Preston CJ's consideration at [40]: 40 Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.
5. I do not accept Mr Tyrrell's submission that Ms Li's trees do not satisfy some criteria established by His Honour. The trees are planted closely and regularly in straight lines. Even if the upper crowns of the taller cypress trees are not touching, the lower parts of their crowns touch those of the shorter, interplanted magnolias, forming a continuous canopy at that height. In the scale of this landscape, the trees appear to form a hedge.
6. In Wisdom v Payn, Moore SC and Hewett AC also considered the factors contributing to trees forming a hedge at [45]: 45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.
7. Ms Murray's submission on this issue, which I favour, was that, to an unbiased person, the trees would be perceived as a hedge.
8. Moore SC and Hewett AC also considered rows of trees interplanted with a shorter species at [67] of Wisdom v Payn: 67 For instance, if a group of two or more trees were to be planted in a linear fashion so as to form a hedge but were planted with alternating species so that every second tree was one which, at maturity, was incapable of rising at least 2.5 m above existing ground level but that the second species was so capable and would dominate or engulf the more modest tree species (bearing also in mind that vines are now deemed to be trees by virtue of s 4 of the Trees (Disputes Between Neighbours) Regulation 2007), such a planting arrangement could render Part 2A of the Act inapplicable. Such an outcome is, in our view, entirely contrary to and frustrating of the purposes for which the amendments creating Part 2A were introduced.
9. Although the purpose of that paragraph was to address the jurisdictional question regarding trees less than 2.5 metres tall within a hedge, the resulting conclusion applies equally here: not all trees must reach the same height, and not all trees must obstruct a view. The planting pattern of Ms Li's trees may result in gaps between the taller crowns, but that does not prevent the trees being considered as a hedge.
10. In Johnson v Angus, Preston CJ considered the meaning of the phrase "are planted so as to form a hedge", concluding at [28] that it indicates "…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."
11. Mr Tyrrell further argued that there is no evidence that the trees were planted with the intention of forming a hedge. The trees were already planted when the Murrays moved into their property, which was before Ms Li purchased the property with the trees, so he said there can be no such evidence.
12. It is inevitable that many Part 2A (hedges) applications to the Court involve trees that were planted before the parties purchased their properties. It cannot always be possible to have verbal or written evidence of the planting intention, but the intention can often be gleaned from the present situation. Trees of the same age, of one or a few species planted in a continuous straight line of regular close intervals along a boundary, on the balance of probabilities, can be assumed to have been planted as a hedge.
13. I find that the trees form a hedge in the present, and this doesn't appear to be a result of horticultural happenstance, but is more likely to have been planned at the time of planting. The trees might be regarded as a single hedge, or as two hedges: five trees along the western boundary forming one hedge, and 16 trees along the northern boundary forming another. Either way, I am satisfied that these 21 trees "are planted so as to form a hedge".

Are the properties adjoining?

1. Mr Tyrrell argued that the respondent's property is not land adjoining the applicant's. The Trees Act, at s 14B, only allows an application to be made in relation to obstruction of views or sunlight caused by trees "on adjoining land." Mr Tyrrell opined that 'adjoining' requires that the properties share a common boundary, which is not the case here as the applicant's and respondent's properties are separated by a street.
2. Ms Murray conceded that the properties are not adjoining in the sense of sharing a common boundary, but expressed her view that the properties are neighbouring and the situation is encapsulated within the parenthesised section of the Trees Act's title: "Disputes Between Neighbours". In her view, she and Ms Li are neighbours.
3. There is some history of this issue being addressed within the context of the Trees Act. Most recently, the Chief Judge of this Court discussed the interpretation of 'adjoining' in Dive v Lin and Liu [2017] NSWLEC 153 at [15]-[50]. It is important to note that Preston CJ stressed that the word's meaning will depend on its statutory context: "Words are chameleons that take colour from their context" (at [16]). Where it might mean 'nearby' in the context of one act, it might mean 'contiguous' in another.
4. In Dive v Lin & anor [2017] NSWLEC 1348, the decision unsuccessfully appealed above on this very issue, the properties were separated by another residential property and I found that they were not adjoining. In P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 ('P. Baer') the applicant's and respondent's properties were separated by a road and were found to be adjoining.
5. Here, the narrow residential street that separates the parties' properties ends here at a T-junction, with each property on a corner of that junction. It is a relatively narrow road reserve that is public land. I find the situation here is more like that of P. Baer than any other, so I'm satisfied that the properties are adjoining land for the purposes of the Trees Act.

Is the view obstruction severe?

1. Ms Murray submitted that trees in the hedge cause a severe obstruction of views from their dwelling. She stressed that these are views they previously enjoyed, showing a photograph from the promotional brochure for their property before they purchased it. She said that before the trees grew they could see more expansive views of the harbour, right down to the sandy shore of Balmoral Beach. Ms Murray said she has not divided up the view into sections, as suggested by Mr Tyrrell, but the neighbouring dwelling obstructs a significant portion of their view, so they value the remaining view more highly.
2. Mr Tyrrell argued that view loss cannot be considered as severe. He argued that the Murrays still have expansive views of the harbour, as demonstrated in my own photograph tendered during the hearing. He referred to the Court's decision in Haindl v Daisch [2011] NSWLEC 1145, where Moore SC and Hewett AC said at [26]: 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.
3. Mr Tyrrell argued that the applicant is slicing up the view and claiming a severe obstruction of one of those slices. He said the respondent's dwelling is the major obstruction to the overall view.
4. Mr Tyrrell pointed out that 'severe' is one step below 'devastating' in Tenacity Consulting v Waringah [2004] NSWLEC 140 ('Tenacity'), and the obstruction here cannot be considered to be almost devastating.
5. Each matter that comes before the Court is different, with its own combination of factors: the extent of available views, the degree of obstruction, other elements contributing to the obstruction and so on. There can be no single line above which a view obstruction suddenly becomes severe. To some extent the assessment is subjective, and what one person may see as a minor obstruction another might consider to be severe. Nevertheless, the Court has strived for consistency over time.
6. In De Zylva & anor v Staas & anor [2012] NSWLEC 1242, Fakes C contemplated the use and definitions of the word 'severely' used at s 14E(2)(a), concluding at [31]: "Thus the legislature has set a high bar beyond even moderate annoyance or inconvenience."
7. I include below two photographs taken on my phone during the hearing, shown to the parties and tendered as evidence. The tops of the cypress trees can be seen to the left of the dwelling. Extensive views remain, including water views.
8. Roseth SC set out a four-step view assessment process in Tenacity, with the first step, at [26], being to assess the view: 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
9. The view of North Head is iconic. At the time of the hearing, that view is still available. The tops of the cypress trees are just below North Head. The trees obstruct part of the harbour view, but other parts of the harbour remain. I accept Ms Murray's submission that the remaining water views are more important, given the obstruction resulting from the dwelling in the centre of the view. However, looking at the overall view, I regard the obstruction caused by trees in the hedge to be, using Roseth SC's descriptors at [28], 'moderate' rather than 'severe'. As a result, the test at s 14E(2)(a) is not met, and I cannot make any orders.
10. Although I have found that the obstruction caused by the trees is not severe, the photographs above show that the trees obstruct part of the view. Without action, further growth of the trees is likely to soon obstruct the iconic view of North Head, in which case the view obstruction might be regarded as 'severe'. During the hearing I asked Mr Tyrrell, the respondent's solicitor, to invite Ms Li and her family to stand at the viewpoints in the Murrays' living areas and to observe the views, so that they might appreciate the impact of their trees on the views.
11. Ms Murray opined that pruning the trees would not be a major task, and there would be no negative impacts for the trees or for the respondent if such pruning were undertaken. I agree that reducing the height of the cypress trees by a metre or two would have little or no adverse impact on the trees' health or the respondent's privacy, but would improve the view for the Murrays. Ms Li did not present any strong arguments that she would be negatively impacted by such pruning, preferring to argue that the extent of obstruction is not severe. Ms Murray expressed some bewilderment as to why Ms Li would not agree to carry out some pruning. While I might share this sentiment, I have found the current extent of obstruction does not enliven the Court's jurisdiction, and so cannot make any orders.

Conclusion

1. I find that the trees form a hedge. Having observed the views from the Murrays' living areas, and the obstruction caused by trees in the hedge, I find: the trees obstruct their views; they obstruct parts of the view that are desired by the Murrays; and without action they are likely to obstruct iconic parts of the view such as North Head. Pruning the trees to improve the Murrays' views would have no adverse impacts on the trees or the respondent. However, I am not satisfied that the view obstruction can, at the moment, be described as severe, so I cannot make orders to interfere with the trees.

Orders

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

D Galwey Acting Commissioner of the Court

Amendments 09 May 2018 - Correction to the rotation of the image at [19] 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: 09 May 2018