North & anor v Andrews; North & anor v Cortis & anor

Land and Environment Court (NSW)|2011-11-09

Judgment 1COMMISSIONER: These are two separate but related applications under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Randwick regarding trees on two adjoining properties. The matters were heard concurrently. 2The Cortis property adjoins the applicants' property to the south. The Andrews property is at the rear of the Cortis property and to the southwest of the applicants' property. 3The applicants are seeking orders for the pruning of a tree on the Andrews property and several trees on the Cortis property to a height that restores their views of Botany Bay and environs, views they contend are severely obstructed by the respondents' trees. Further orders are sought for the maintenance of the trees at that height.

The Cortis property 7There are six trees nominated on the Cortis property. Trees 1 and 2 are growing in a narrow garden bed outside of the side gate that leads into the Cortis' backyard. This garden bed adjoins a pathway on the southern side of the applicants' driveway; the boundary between the two properties is identified by way of a painted line on the driveway. T1 (to the east) is a Lillypilly and T2 is a Waterhousia floribunda . The foliage of these trees intermingle. 8The Cortis' backyard comprises an in-ground pool on the southern side of the yard. The northern side consists of a series of terraces stepping down the slope towards the rear of the property. The lowest terrace extends the width of the block. The north-western portion of the Cortis property adjoins the rear of the Andrews property. 9Tree 3 is a young/semi-mature Angophora costata (Sydney Red Gum) planted in the lawn between the corner of the rear deck and the Cortis' swimming pool. The foliage of this tree is not touching the foliage of any other tree. T4 is a semi-mature Fraxinus sp. (Ash) planted on the northern boundary beside the applicants' garage (the applicants' garage wall forms part of the boundary between the parties' properties). T3 and T4 are growing in the upper grassed terrace approximately 3m from each other. 10T5 is a semi-mature Jacaranda growing on a lower terrace, below the applicants' garage, and close to the northern boundary fence some 4.5m from T4. T5 is 3m to the west of the retaining wall that divides the two terraces. The lowest terrace runs along the rear of the block. T6 is a Robinia pseudoacacia 'Frisia' (Golden Robinia) in the far southwestern corner of the garden below the pool. It is approximately 10m from T5. 11Tree 7 on the Andrews property is on a level below the rear of the Cortis property. It is approximately 7m from T6 and 6-7m from T5 although there is some intermingling of canopies. 12The Cortis' contend that the trees provide shade for their garden as does Mrs Andrews' wattle. They also value the privacy the trees provide their backyard and pool, particularly with respect to the overlooking possible from the applicants' rear upper deck. A number of the trees, in particular T1 and T2 were planted as part of an approved landscape plan as a condition of development consent for the alterations/additions to the Cortis property. 13The applicants contend that the collective canopies of these trees block their views of Botany Bay and environs to the southwest.

The framework for consideration 14There are a number of key jurisdictional tests that must be satisfied before the Court can make an order under part 2A for any interference with a tree. Section 14 A(1) provides: (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) 15Only if any or all of the trees meet the test in s 14A, the Court must then consider the tests in s 14E(2)(a)(ii). This states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land, 16That is - do the trees impact on views from the applicant's property? If there is an impact on views, is it severe? 17If the impact on views is severe, the Court must then consider s 14E(2)(b). This states: (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. 18In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D, but only if the jurisdictional tests in s 14A(1) and s 14E(2)(a)(ii) are satisfied.

Adjoining land 19Mr McMillan raised the issue of whether the Andrews property could be considered to adjoin the applicants' land . Section 14B(b) of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of any view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 20The Andrews property is diagonally to the southwest of the applicants' property. In Cavalier v Young [2011] NSWLEC 1080 at [7] (and similarly in Boddington v Julian & anor [2011] NSWLEC 1172 at [12]) the Court found: 7 In the matter before the Court, the respondent's property is diagonally to the rear or northwest of the applicant's property. The only common point between the two properties is a corner post. I am satisfied that despite the limited physical connection between the two properties, they are adjoining and the matter can proceed to the next step. 21In taking a purposive approach to the application of the Act, I am satisfied in this instance that the two properties are adjoining and I have the jurisdiction to proceed in matter 20689 of 2011.

Are the trees planted so as to form a hedge? 22Mr Austin for the applicants contends that the Trees Act does not state that a hedge must be contained on one property, only that the trees must be on adjoining land. In his submissions, the trees in the two respondent properties form a contiguous canopy that appears as a hedge when viewed from the applicants' dwelling. This, he says is an appropriate interpretation of s 14A(1). Further, he considers that the Act refers to 'trees' not 'shrubs' and therefore anticipates that trees need room to grow. On this basis, the spatial arrangement and distances between the trunks is secondary to the effect created by the canopies of the trees. 23It is true that the Act is silent on whether a hedge, for the purpose of the Act, must be contained on one property. For example, it is entirely possible that a hedge may have been planted along the boundary of a property that is subsequently subdivided into two lots and fenced accordingly. In this example, were a party to make applications under Part 2A concerning the entirety of the hedge, assuming the trees are in excess of 2.5m high and are on appropriately zoned land, the first test would be whether the applicant's property adjoined both of the sub-divided properties. If one of the lots was no longer adjoining, then the Court would have no jurisdiction to consider that application even though the hedge might be contiguous. 24Therefore the first element of Mr Austin's argument is valid. 25In regards to what constitutes a 'tree' for the purpose of the Act, the definition in s 3 is very broad and applies to Parts 2 and 2A: tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations. 26The Trees (Disputes Between Neighbours) Regulation 2007 prescribes bamboo and vines. In the almost 500 matters heard in this jurisdiction, the Court has taken a very broad and inclusive approach in its interpretation of 'tree' and has regularly considered shrubs: Robson v Leischke [2008] NSWLEC 152 at [138]-[139]. Indeed, the Act applies to dead trees, and in applications made under Part 2, to trees that have been removed. Therefore, taking Mr Austin's arguments further, the Act does not imply that because 'trees' are involved there must be a degree of separation between them to enable them to grow. 27The other arm of Mr Austin's submission is that the categorisation of 'hedge' should be as it is perceived from the viewing points of an applicant's property. In this regard, he contends it is the canopies of trees that create the effect and not the arrangement of the trunks. 28The Act was amended in August 2010. The amendment gave the Land & Environment Court a strictly limited new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling or views from a dwelling. 29Pursuant to s 34(2) of the Interpretation Act 1987 , the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act. The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies. The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act. The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review. 30Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006 " undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force - see http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_tree_disputes_information .] a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling. b) That this jurisdiction be strictly limited, with applications restricted to hedges which: are both high and give the effect of a solid barrier, and are causing severe impact for a dwelling, and have caused the impact to the applicant (not to the previous occupant), and are located between neighbours on adjoining land. c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title. f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction. 31The discussion relating to Recommendation 9 considers that in establishing a new and strictly limited jurisdiction, the amendments relating to views and sunlight should not apply to single trees but rather to hedges ' that are both high, and similar to a wall in their visual effect'. 32The amended Act incorporates all of the recommendations made in the review. 33While Mr Austin's contention goes to the visual effect from the applicants' property, there is no indication in the Act, the second reading speech, or the review of the Act that the interpretation of the 'visual effect' should be so limited. The Act does not define the word 'hedge' however the Court has considered its meaning in several cases. Relevantly in Wisdom v Payn [2011] NSWLEC 1012, Moore SC and Hewett AC at [44]-[47] state: 44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings. 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. 46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded. 47 Having rejected Mr Hannaford's submission about a purely subjective test based on the eye of the beholder, we turn to consider the Bottlebrush. 34In McLaren v Lewis [2011] NSWLEC 1170, the Court at [25]- [26] expanded on the findings in Wisdom : 25 In my view, apart from a linear relationship, the trees should also be relatively close to one another. The proximity will be somewhat dependent on the scale of the landscape, the species of the tree and the intent of the planting.....[reference to paragraph [46] in Wisdom ] 26 In this paragraph, the Senior Commissioner and Acting Commissioner use the example of 'modestly old firs along a driveway'. Whilst this is clearly an example of what might be considered a hedge for the purpose of the Act, it hints at a largish block of land and a more formal planting. In typically smallish backyards of dwellings constructed over the past few decades I consider it would be unreasonable to construe that any 2 trees, particularly of different species, planted any more than about 3 m apart is a 'hedge' even though any 2 trees will be in a linear arrangement with one another. 35Therefore the question posed by s 14A(1)(a) - are the there groups of 2 or more trees planted so as to form a hedge - remains to be answered. Would anyone walking onto either of the respondents' properties perceive the trees in question to be 'planted so as to form a hedge'? Is there a degree of regularity, arrangement and spacing of the planting that would lead to a conclusion that the trees form a hedge? Is there evidence that the trees on both of the respondents' properties part of a 'hedge' that existed before subdivision or indeed were part of a collaborative arrangement across property boundaries to create a hedge? 36In considering the combined properties, there is no evidence that the planting of trees was part of some cooperative effort by previous or current owners to create a hedge. Notwithstanding the interconnection of the foliage of the trees at the rear of both properties, the age, location and range of species are so different that I do not consider that they could reasonably be construed as forming a hedge. They certainly do not form a 'wall' or a 'solid barrier' as anticipated in the report on the review of the Act. 37When the Andrews property was inspected at the hearing, Mr Austin was granted leave to amend the application to include the Melaleuca; this being a tree not clearly visible from the applicants' property. As described above, this tree is approximately 3m from the wattle and is at least 1m forward of it. Again, the relevant questions in [36] must be answered. 38In considering the Andrews trees, Mr McMillan submits that the Cedar Wattle may be self-sown and not planted, and even if it was planted, it does not form a hedge in the ordinary English language understanding of the word. In my opinion and based partly on the expertise I bring to the Court, there is no evidence that the Cedar Wattle is self-sown and it has in the past been a relatively popular landscape plant. Given its location in the middle part of a garden bed, it would seem to me to have been planted. Similarly, the Melaleuca has been planted.

Findings - s 14A - Andrews property 39Inevitably, a straight line can be drawn between two plants however, as considered in Wisdom , McLaren and more recently in Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336 at [23], would the 'reasonable person on the street' perceive the trees in the Andrews' backyard to be a hedge in the ordinary understanding of that style of planting? Notwithstanding the Court's flexible application of the meaning of s 14A(1), in this instance I am unconvinced that the two trees are planted so as to form a hedge. Their age, form, spatial arrangement and species would suggest to me that they have been planted as individual specimens. Indeed, the applicants were unaware of the existance of the Melaleuca before the hearing. Therefore on this basis, I find the Court has no jurisdiction to proceed any further with the application relating to the Andrews property and it is therefore dismissed.

Findings - s 14A - Cortis property 40Having established that there is no planned relationship between the trees on the Cortis and Andres properties, in my opinion, T6 on the Cortis property, the Robinia, is an individual tree. Similarly, I find that T5 and T4, the Jacaranda and Ash respectively, whilst being planted along the Cortis' northern boundary, are read as individual specimen trees rather than as forming a 'hedge'. They are planted on separate terraces and are some 4.5m apart. In my view, T3, the Angophora, is also a specimen tree. Although it is only about 3m from the Ash, it is spatially discreet and its canopy is free of all other trees. I am satisfied, that it would be highly unlikely that someone entering the Cortis backyard would perceive the four trees, or any combination of them, as a hedge in the ordinary understanding of that style of planting. As stated above, even given the purposive and flexible approach the Court has taken in its determination of applications made under Part 2A, the planting arrangement in the Cortis backyard does not satisfy the tests in s 14A(1)(a) and therefore those trees are beyond the jurisdiction of the Court. 41I am satisfied that the only trees on the Cortis property that satisfy the jurisdictional test in s 14A are trees 1 and 2. Despite tree 2 being a replacement planting, the trees are close enough and of a similar form that they could reasonably be perceived as forming a hedge.

Is there a severe obstruction of a view as a consequence of T1 and T2? 42The nominated viewing points are V1 - a balcony off the main living area. V2 is from the dining room/living area off the balcony, V3 is from the kitchen area. These viewing points are located at the rear of the North's property and the views in contention are generally in the southwestern quadrant. 43Before considering the severity of any obstruction, it is relevant to consider the words a view as used in s 14 of the Act. This is considered in Haindl v Daisch [2011] NSWLEC 1145 by Moore SC and Hewett AC 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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 44The applicants contend that when they purchased their property in 2000 they had uninterupted views of Botany Bay, Sydney Airport and golf courses to the west and southwest. In their application they state that on a clear day they could see the Blue Mountains in the distance. In oral evidence, the applicants stated they were once able to see Cronulla in the distant south-southwest. 45Photographs in their application taken from their balcony on Christmas day 2004 (during the bushfires on that day) show the distant skyline of Rockdale with Botany Bay in the middle distance and nearby residential flat buildings in the foreground. The top of the canopy of T 7 is visible. A black and white image shows the main campus of the University of NSW towards the north-west. 46The rear of the applicants' dwelling is capable of obtaining views from the northwest through to the southwest. It is noted that views to the west and north-western quadrant are now obscured by the applicants' own Jacaranda and trees growing on other properties to the northwest. 47Section 14E(2)(a)(ii) requires the impact on a view to be severe before the balancing and discretionary matters in s 14E(2)(b) and s 14F can be considered. 48In a number of cases including Ball v Bahramali & Anor [2010] NSWLEC 1334 and Haindl , the Court has considered the word 'severe' and the high bar it sets. Relevant definitions from the Macquarie Dictionary and the Oxford Dictionary include: harsh, harshly extreme, grievous, extreme, hard to endure, causing great discomfort or distress. In Haindl at [64] Moore SC and Hewett AC said the following: 64 It is clear to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both qualitative and quantitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction of that view. 49In determining applications made under Part 2A concerning obstruction of views, the Court has commonly referred to the planning principle set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. The first three steps of the four-step process are considered relevant to Part 2A. Due to the findings in regards to s 14A for both the Andrews and Cortis properties, the only trees considered to form a hedge for the purpose of the Act are T1 and T2; therefore these are the only two trees that can be considered with respect to their impact on views from the applicants' property. Photographs marked 6 and 6A in the application show the trees and the view taken from seated positions on the balcony. 50Step 1 in Tenacity: 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. 51In this matter, the views are best described as distant district views that include part of Botany Bay and its distant shoreline. 52Steps 2 and 3 in Tenacity consider the part of the property from where the views are obtained and the extent of the impact. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front or rear boundaries. In addition, whether a 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. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property and not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe, or devastating. 53The applicants consider both sitting and standing views to the southwest to be affected; these views are across side boundaries. From a seated position on the balcony some views to the southwest are visible, however, it is true to say that the growth of the trees on the Andrews and Cortis properties have obscured a significant portion of the broad and apparently open views the Norths once had towards the southwest. Mr McMillan for the Cortis' contends that there were other trees on both the Cortis and other adjoining properties that would have limited some of the views to the south-southwest including a palm on the Cortis property and another large Acacia on an adjoining property. Depending on where one sits on the balcony, T1 and T2 would limit on average about 30% of the view to the southwest and considerably less of the whole view. 54The seated view from the dining room is limited to a narrow corridor across the side boundary and is, by necessity, limited to whoever is sitting at the relevant head of the table. The view from the kitchen is from a standing position and is limited by the balcony and the applicants' Jacaranda to the southwest. 55On balance I consider the obstruction of the view as a consequence of T1 and T2 to be moderate and not severe. Considering the finding in Haindl cited in [43], it is the totality of the view that should be considered. In this regard, the majority of the available 180 view from the rear of the applicants' property is obscured by trees other than T1 and T2. 56Therefore, I am not satisfied that T1 and T2 are severely obstructing a view from a dwelling on the applicants' land and therefore as s 14E(2)(a)(ii) is not satisfied, no orders under the Trees Act can be made for any intervention with either of those trees. 57Therefore as a consequence of the foregoing, the Orders of the Court are: (1)Application 20689 of 2011 is dismissed. (2)Application 20690 of 2011 is dismissed.

J 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: 31 January 2012

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