Ness v Morris & anor

The Part 2 application 5The application originally contained a claim that in strong winds, branches from a row of Escallonia planted along the common boundary and adjoining the applicant's deck, damaged a section of timber lattice on the deck. However, that element of the claim is no longer pressed and the Part 2 claim only relates to injury. 6The oleanders in question are Tree 1 and Tree 5. Tree 1 is in fact two oleanders located near the south-western corner of the applicant's deck and adjacent to the upper portion of the applicant's driveway and ground level garage. Until recently, there was a third and larger oleander in that location. The remaining plants have been recently pruned. Tree 5 is located near the bottom of the respondents' steep and relatively long driveway close to the bottom of the applicant's equally steep and long driveway. It too has been recently pruned and there are no overhanging branches. 7In applications under Part 2, the relevant key jurisdictional test is found in section 10(2)(b). This states that the Court must not make an order under this Part unless it is satisfied that the tree/s, the subject/s of the application, could cause injury to any person. 8The applicant tendered two peer reviewed scientific journal papers on the toxicity of Oleanders. The papers consider two species in two genera of the family Apocynaceae - Nerium oleander (Common oleander) and Thevetia peruviana (Yellow oleander). 9The first respondent is a medical practitioner of long standing, while not a toxicologist, his assessment of the papers is that the 199[5] paper attributes two paediatric deaths to oleander [one in Australia and one in the Solomon Islands] but does not specify whether they were attributed to Thevetia or Nerium. In his view, the 2010 paper is more relevant and includes a review of the 1995 paper, which does differentiate between species and identifies Thevetia as the cause of the two paediatric deaths mentioned in that paper. The 2010 paper records no paediatric deaths due to Nerium oleander. He also notes that an article referred to in both papers concerning the admission of 13 children who had ingested oleanders to SE Queensland hospitals over a number of years does not identify the cause of the poisoning. The conclusion he draws from the papers is that the risk of injury from ingestion of Nerium oleander is negligible. He cites a fact sheet from Westmead Children's Hospital selectively referred to in the application that includes Nerium in the same category of toxic plants as Agapanthus, Cycads, Frangipani and Grevillea - all species that he says are growing in the applicants' garden. 10On my reading of the papers, the findings support the common knowledge that the leaves and other parts of oleanders are toxic if ingested. The 1995 paper reviews a number of studies of human and animal toxic exposures to oleander and includes a table summarising the particular study, the age and gender of the person involved, the part of the plant ingested, the country in which it occurred, the treatment the patient received, and the outcome (death or survival). I agree with the first respondent that the 1995 paper does not differentiate between genera. 11The SE Queensland paper the first respondent refers to, surveyed all exposures to oleander poisoning in SE Queensland resulting in hospital admissions for children 12 years and younger between 1972 and 1978. The extract of the paper in the 1995 paper does not include a breakdown of the genera involved. Of the 13 admissions of children between 0.7 and 7 years of age, there were no mortalities during this period. Oleander ingestion accounted for about 27% of all types of plant poising. The survey provided an 'oleander exposure incidence rate' for children of 0.62 per 100 000. The authors concluded that: "while oleander toxicity accounts for a disproportionally [sic] high number of the plant ingestion incidents among young children, the mortality associated with these events is negligible". 12The 2010 review paper includes a table similar to the table in the 1995 paper but extends the number of studies and records the genus of the oleander that caused the poisoning however, the Table does not include the SE Qld study. As stated above, the two paediatric deaths, one of which was an Australian child [reported in a 1981 study], were attributed to ingestion of seeds/leaves from Thevetia, the Yellow oleander. Another Australian child survived the ingestion of one seed of Yellow oleander. The only other Australian case reported is of a 52 year old male who survived ingestion of a root extract of Nerium or Common oleander. The vast majority of cases around the world involve ingestion of seeds of Yellow oleander. 13 In regards to paediatric patients, the 2010 paper concludes that [citations omitted]: "Poisoning through accidental ingestion of T. peruviana seeds is common in young children. However, N. oleander leaves have a strong bitter taste; therefore children rarely eat large quantities".

Findings 14The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 15Although there is a hypothetical possibility of poisoning, the likelihood of this happening to the applicant's small children seems remote, and therefore I am not satisfied to the extent required by s 10(2)(b) that the Court's jurisdiction to make orders with respect to the oleanders is engaged. 16However, if I am wrong in this conclusion, as a matter of discretion, I am similarly not convinced that an order of the Court for any intervention with the trees should be made. While I note the respondents' agreement to remove T1 and the applicant's agreement to withdraw the claim regarding T5, that is an agreement between the parties and not an Order of the Court's making. 17In coming to this conclusion I note that the trees are close to the top and bottom sections of a steep driveway. There is no gate between the applicant's property and the busy road it fronts. In my mind, it is highly unlikely that anyone would leave very small children unattended in such an area. While the applicant agreed that this was unlikely, she maintained there was still a risk of leaves from T1 blowing onto the corner of the deck. 18At the moment, the deck is enclosed by a combination of glass and lattice panels. The lattice-bordered corner closest to T1 is covered with shade cloth. The enclosure of the deck is currently the subject of a Notice of a Proposed Order No 2, 12 and 15 under s 121B of the Environmental Planning and Assessment Act 1979 issued by Pittwater Council on 19 March 2014. Amongst other things, the proposed Order requires the applicant (and her husband as co-owners) to replace the glass panels along the western elevation of the deck with a balustrade. 19The proposed s 121B order does not require the removal of the glass panels on the southern façade or the removal of any of the lattice screens. The glass panel on the western elevation does not adjoin T1 and is some distance from it. 20Nerium oleander is an evergreen shrub that does not readily lose its leaves. Exhibit G includes a photograph of a sparse scattering of dead oleander leaves alleged to have come from T5. As stated above, given the location of the plant so close to a busy road, it is unlikely that unsupervised young children will be in the vicinity of the fallen leaves. The second respondent stated that there are many oleanders planted in nearby front gardens and council parks readily accessible to passing children and that they are a common plant throughout the northern beaches, especially given their salt tolerance and general hardiness. She also states that until recently, there was a large oleander in the applicant's back garden. 21In regards to the scientific review papers discussed above, the plant is toxic but the reported incidence of poisoning due to Nerium oleander is extremely low. In my view, the papers do not add any determinative weight to the applicant's argument. 22Therefore, the remaining element of the Part 2 application is dismissed.

The Part 2A application 23The views in contention are described in paragraph [2] of this judgment. The nominated viewing positions are V1 - standing position on the south-facing portion of the deck, V2 - standing position from inside the living room that adjoins the deck, and V3 - seated position from the dining room table located on the western side of the open plan living/dining area. These viewing positions are located on the first floor of the applicant's dwelling. There are generally uninterrupted views of the ocean and the northern portion of the North Narrabeen surf break from the balcony adjoining the second floor bedrooms. 24The trees in question are described as follows. T2 is a row of Escallonia 'Iveyi' (Escallonia) planted in a series of small stepped/terraced/retained garden beds along the respondents' western boundary and close to the common dividing fence between the parties' properties. T3 is a row of Nerium oleander along part of the western portion of the respondents' property that adjoins another property to the west (No. 3). The applicant presses for two Banksias at the southern end of this row to be included as part of T3. T4 is a row of Olea europaea (Olive) planted along the southwest-facing façade of the respondents' dwelling and generally opposite T3. 25Of relevance, the applicant is seeking the pruning and maintenance of T2 and T3 to 2m; and the removal of all olive trees in T4 impacting on the views, in particular the first tree in the row closest to the applicant's property. 26The applicant contends that when she purchased her property, apart from the obstruction caused by the large Banksia growing on the council reserve, the views in question were clearly visible. However, the respondents dispute the extent of those views at that time. She also contends that the respondents' trees were much taller when the application was made and that they have been recently pruned. 27The respondents state that they regularly employ a landscape contractor to maintain and prune their garden; their evidence contains a statement from their gardener confirming this. They state that the height at which T3 is trimmed is to maintain privacy between their property and the private open space and east-facing windows of the dwelling at No. 3. They submit that the olives serve the same function. 28The application claim form includes undated real estate agency photographs of the property and views from the time the applicant's property was on the market, presumably in late 2010. Photographs taken from the second floor balcony clearly show the council Banksia obstructing part of the ocean view/ land water interface/ surf zone and lagoon entrance. The oleanders appear to be approximately level with the fascia at the guttering height of the dwelling at No. 3. The only other real estate photograph showing any view is a wide-angled shot taken from a standing position in the vicinity of V3 looking through the glass door to the deck and through a glass panel on the deck to (probably) Collaroy across the dunes at North Narrabeen in the far distance. The water view in that photograph is framed by the structures, what appears to be T3, and the dwelling at No. 3. T2 does not obstruct the view. 29Photographs taken of a party on the applicant's deck in February 2011 [exhibit H] do not illustrate the view but indicate that the Escallonia (T2) was at varying heights - above and below - the top of the dividing fence. Relevantly, the part of T2 closest to the glass panel through which most of the water views are seen is lower than the height of the fence. However, it was noted at the hearing that, since then, the height of that portion of the fence has been lowered by five panels. 30The respondents tendered photographs taken in January 2011, not long after the applicant purchased her property, that show the height of T3 in relation to the dwelling at No. 3 - the height appears to be approximately level with the fascia. From the points in the respondents' garden at which the photographs were taken, the water views to Collaroy are variably and partly obstructed by T3.

Jurisdictional tests 31In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied before the Court can make any orders for any intervention with a tree under this Part. 32Section 14A(1) states: (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). 33If this is satisfied, the next relevant tests are in s 14E(2). This states: (2) The Court must not make an order under this Part unless it is satisfied: (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. 34If s 14E(2)(a) is satisfied, consideration of s 14(2)(b) and ultimately s 14D - the Court's jurisdiction to make orders, require consideration of a number of discretionary matters in s 14F.

Section 14A(1) 35As stated above, the Escallonias in T2 are planted in a number of individual beds. They are generally planted as single plants however in some beds there are at least two plants. It is therefore open to me to question whether all of T2 is a hedge for the purpose of the Act. However, absent any submissions, I am satisfied on the basis of the single species, arrangement and treatment of the plants, that they are planted so as to form a hedge. Therefore s 14A(1)(a) is met. At the hearing the trees were measured with a height stick, only the two most westerly trees were at least 2.5m tall. However, as discussed in Wisdom v Payn [2011] NSWLEC 1012 at [66]-[67], the Court usually takes a purposive approach to the interpretation of s 14A(1)(b) and therefore all the trees comprising T2 are deemed to satisfy s 14A(1). 36T3 comprises a row of oleander that have been closely planted and uniformly pruned. They are in excess of 2.5m in height. I am satisfied that the oleanders are planted so as to form a hedge and s 14A(1) is met. In regards to the two Banksias at the end of the row, I am not convinced that their spacing or treatment satisfies s 14A(1)(a). They are not part of the original application and as such, the respondents have not been given an opportunity to consider them. At best they could be considered to be another hedge. However, if I am wrong in the jurisdictional finding and the issue of procedural fairness, I will discuss their impact on the applicant's view. 37T4 is the row of olive trees. These are planted at about 2.0-2.5m centres and the canopies do not intertwine. At the time of the hearing the trees presented as a row of individual small trees. This arrangement is shown in Plate 5 of the Jacksons Nature Works arboricultural report dated 14 March 2014. I am not satisfied to the requisite level that the olives are planted so as to form a hedge and therefore s 14A(1)(a) is not met. As with the Banksias, if I am wrong in this finding, I will consider the impact of these trees on the applicant's view.

Section 14E(2)(a) - is there a severe obstruction of a view 38In assessing the severity of the impact on views, the Court regularly applies the relevant first three steps in the assessment process in the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. 39The first step is a consideration of the nature of the views affected. Essentially water views and views of the land/water interface are valued more highly than land views, and iconic (eg. icons such as the Opera House and Sydney Harbour Bridge) views are valued more highly than those without icons. Whole views are valued more than partial views. 40The second step in the Tenacity assessment process consideration of from what part of the property the views are seen. As stated in Tenacity at [27]: ...For example the protection of views across side boundaries is more difficult than protection of views from front or rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 41The third step in the Tenacity assessment process assesses the extent of the impact. The whole of the property is included, not just the nominated viewing positions. Views from living areas are valued more highly than views from bedrooms. While view loss can be considered in quantitative terms, it is usually more useful to consider the view loss qualitatively. The impact ranges from negligible, minor, moderate, severe, to devastating. 42The applicant maintains that the view of the North Narrabeen Surf break is an iconic view by dint of the creation of the North Narrabeen National Surfing Reserve in 2009. According to an item in Exhibit D, a compilation of material on the surfing reserve, "the reserve covers 50 hectares of land and water along one kilometre of coastline taking in part of Narrabeen Lagoon which plays a role in the natural processes that make the surf breaks of the beach so unique." A map in the material shows the extent of the reserve. At best, even from the second floor balcony, only the northern portion of the actual break can be seen from the applicant's property, as the vegetated sand dunes between the lagoon and the surf obstruct the rest of the break. The potential view of the break from the nominated viewing positions is more limited. 43The applicant also submits that the view is a whole view and not a partial view. The respondents' position is that the applicant did not have a whole view to begin with, given the obstruction caused by the Banksia in the council reserve. 44The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At [26] Moore SC and Hewett AC state: 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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 45As stated above, V1 is from a standing position on the deck; V2 is from a standing position in the living room; and V3 is a seated position from one or two positions at the dining room table. The views in contention are across side boundaries. Given its orientation in the street, the principal views obtained from the applicant's property are district views to the west from the front of the dwelling. 46The applicant submits that when the application was made, the respondents' trees fully obscured the views; photographs included in the Rain Tree arboricultural report dated November 2013 confirm this. While the applicant acknowledges the recent pruning has returned 50% of the views she had when she purchased the property, she submits this is still a severe obstruction of the view. 47The Act uses the word 'severely'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Thus the Act sets a high bar for the level of obstruction caused by the trees the subject of the application. 48The Court has held that the use of the word 'are' in s 14E(2)(a) requires that the trees to which Part 2A apply must be severely obstructing a view from an applicant's dwelling at the time of the hearing (see Tooth v McCombie [2011] NSWLEC 1004 with further discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]). While it may have been the case that the trees were taller when the application was made, there is nothing to prevent a respondent from taking action to remedy the situation before a final hearing. 49Some discussion of the extent of the views available to the applicant when she purchased the property is relevant. As discussed quite extensively in McDougall v Philip [2011] NSWLEC 1280 at [21]-[24], the intent of the review of the Trees Act that incorporated Part 2A, was not to enable an applicant to have any more views (or sunlight) than they had when they purchased or occupied their dwelling. 50On the day of the hearing, from various parts of V1, the deck, I was able to observe the northern part of the surf break at North Narrabeen, Collaroy Beach, the frontal dunes at North Narrabeen, part of the lagoon, and part of Long Reef Headland between the dead Banksia in the council reserve and the dwelling at No. 3. There was no obstruction from T2. There were filtered views of the surf break through the closest olive tree in T4; at most the obstruction was moderate. The trees in T3 did not severely obstruct the views. The tallest Banksia on the respondents' property, beyond T3 (described in [36]) provided a minor obstruction of the view, being only slightly taller than the oleanders and less dense. 51The views from V1 are principally constrained by the lattice screens on the applicant's deck and the dwellings on the adjoining properties, rather than the respondents' trees. I am satisfied that this was the case when the applicant purchased her property, although I accept that the olive trees were smaller. 52I am not convinced by the applicant's argument that the view of the surf break is an "iconic view". It is certainly a very pleasant view, but the to average person, it would not have any remarkable, unique, and widely recognised visual features that would readily distinguish it from other surf breaks. This particularly applies to the limited portion of the break capable of being seen from the nominated viewing positions. 53V2 is a standing position from within the applicant's living room. To be able to see the view from that room, one must stand on the western side of the room and look through the door to the deck and then through one of the glass panels on the deck. That is, the views can only be seen from a very restricted part of the room. The majority of the views from this room are to the west. The view seen on the day of the hearing is that described above. 54V3 is a seating position from one or two chairs at the dining room table. This is located on the northern wall and therefore furthest from the view. The view is through the glass door/ glass panel described in [50] but more distant and more generally constrained. 55As discussed elsewhere, the applicant has generally unobstructed views of the beach and beyond from the upstairs deck. 56Overall, I find that none of the nominated trees growing on the respondents' property, and to which Part 2A applies, are severely obstructing any of the nominated views from the applicant's property, and therefore s 14E(2)(a)(ii) is not satisfied. As this is the case, there is no need to consider the balancing of interests in s 14E(2)(b). 57Should the circumstances change it is possible for the applicant to make a fresh application.

Conclusions and orders 58After considering the evidence and viewing the parties' properties, the Orders of the Court are: (1)The application in its entirety is dismissed. (2)All exhibits except Exhibit A are returned.

Judy Fakes 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: 11 April 2014