Pearce v Gleeson

Part 2A of the Trees Act applies to the trees

1. Part 2A of the Trees Act provides a limited jurisdiction for those who find neighbouring trees obstruct their sunlight or views. Firstly, at s 14A: 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). (2) Despite section 4, this Part does not apply to trees situated on Crown land.
2. The Applicants engaged David Gowenlock, a consulting arborist of Seasoned Tree Consulting, to assess the trees and to prepare a report (Exhibit C). Mr Gowenlock described two hedges:

• Hedge 1 includes 5 lilly pillies (Syzygium australe), 4-6 metres tall, growing on the Gleesons' property along the common boundary, partly between the parties' respective dwellings.
• Hedge 2 includes 9 more lilly pillies, 2.5-4 metres tall, growing on the Gleesons' property along the common boundary, continuing to the east toward the Gleesons' rear boundary.

1. It is not disputed that the trees are planted to form hedges. I find that Pt 2A of the Trees Act applies to all trees in both hedges.

The Applicants made a reasonable effort

1. Before the Court can make any orders, the jurisdictional tests at s 14E(1) of the Trees Act that must be satisfied. 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) …
2. The Pearces submitted that they discussed the trees with the Gleesons, who rejected their proposal for pruning. Mediation was arranged, but when the Gleesons brought Mr Williamson to represent them at mediation, the Pearces refused to participate, preferring to negotiate directly with their neighbours. The Pearces refused an offer then sent to them by Mr Williamson, as they did not find it satisfactorily resolved their concerns.
3. The Gleesons submitted that the Pearces, by refusing to participate in mediation, did not make a reasonable effort to reach agreement.
4. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Preston CJ noted at [195] that the language used at s 10(1)(a) of the Trees Act "…is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process." His Honour then quoted Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42 at [14], where Lloyd J listed five tests to consider when one is determining what might be 'reasonable effort', including: "… e) The requirement is satisfied when objectively it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future (Treygoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15845)."
5. After receiving the Gleesons' offer, the Pearces understood that further negotiations would not result in an agreement. On that basis, I am satisfied that the Pearces made a reasonable effort.

Trees in Hedge 1 severely obstruct a view

1. Before the Court can make any orders, the jurisdictional test at s 14E(2)(a) of the Trees Act must be satisfied. 14E Matters of which Court must be satisfied before making an order (1) … (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) …
2. Trees in Hedge 1 obstruct a view from within the Pearces' dwelling to the distant landscape. The view from the outdoor deck is not significantly obstructed. Considering the obstruction from within their dwelling, I note that:

• The obstructed view is of the landscape, including both natural and built elements. The more distant view includes the ocean beyond Newport Beach. It is a pleasant outlook that gives the viewer a sense of where they are in the surrounding landscape.
• The obstructed view is from the Pearces' living areas, where they might spend a considerable amount of time as a family and with guests. The view is across the side boundary; it is obstructed from sitting and standing positions.

1. Considered qualitatively, I find the lilly pillies in Hedge 1 obstruct a view from the Pearces' dwelling and, applying the terminology of the view-sharing principle used by Roseth SC at [28] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140, the obstruction is more than 'moderate' but less than 'devastating': it is severe.

Trees in Hedge 2 do not severely obstruct a view

1. Trees in Hedge 2 are downslope from those in Hedge 1. They are generally below the sightlines from the Pearces' dwelling out to the broader landscape. It was clear at the onsite hearing that trees in Hedge 2 do not severely obstruct a view. The Pearces acknowledged this, but stressed that they are concerned that the trees will grow taller and obstruct the view, a situation they would like to avoid. Orders can be made to prevent a future view obstruction only where trees already severely obstruct a view: see s 14E(2)(a)(ii) of the Trees Act, above.

Balancing the interests of the parties

1. Before the Court can make any orders, the jurisdictional test at s 14E(2)(b) of the Trees Act that must be satisfied. 14E Matters of which Court must be satisfied before making an order (1) … (2) The Court must not make an order under this Part unless it is satisfied that: (a) … (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.
2. Assistance is provided by the list of matters to consider at s 14F of the Trees Act, including consideration of the trees' growth during the time the Applicants have owned their property (s 14F(c)).

The Pearces have not lost access to a view

1. Although a view from their dwelling is severely obstructed by Trees in Hedge 1, the Pearces have not suffered a loss of that view. They purchased their property in 2021, settling there in October 2021. They commenced these proceedings when they filed their application on 6 December 2021. The Court has consistently found that the intent of the Trees Act is to provide a remedy where an applicant has suffered the loss of sunlight or a view, but not where the obstruction already existed at the time a person purchased their property: see McDougall v Philip [2011] NSWLEC 1280 at [22]-[24] and Taylor v Dixon [2022] NSWLEC 1083 at [10]-[12].
2. The situation has changed little during the time the Pearces have owned their property, so I find that orders should not be made to interfere with the Gleesons' trees.
3. Another matter to consider here is the Gleesons' privacy (s 14F(l)). They submitted that the Pearces overlook their property and can see into their bedroom, deck and outdoor bath. I noted that their bedroom has opaque louvres that they can close. The expectation of complete privacy for their back deck and an outdoor bath seems unreasonable given the proximity of rear decks on most dwellings along this street.
4. I note here that lilly pillies in both hedges will grow to greater heights if not maintained by the Gleesons. If the situation changes such that the trees severely obstruct a view that was available when the Pearces came here, they can make a new application to the Court. Should that occur, the Court might consider the current situation, and any actions taken by the parties in the intervening period, as per s 14F(n).

Orders

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

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