Probert v Christie

Onsite hearing

1. The hearing took place onsite. Both Mr and Mrs Probert were present, as was Mr Christie. The trees were inspected initially. The four mature Cheese trees (the trees) were distributed across the rear of the respondent's property, in a largely irregular pattern, relative to most hedges. They were not in a straight line, the spacing between the trees was uneven, and, though it is often hard to clarify when inspecting a group of mature trees for the first time, they did not all appear of the same age, or stage in their life cycle.
2. Mr Christie contended that the trees had most likely been self-sown, rather than planted, and took the Court to one specimen, which emerged from gaps or cracks in a sandstone shelf, to substantiate this point. Mr Probert was adamant that the trees had been planted.
3. Though not considered in his proposed orders, Mr Probert took the Court to a tall Callistemon sp. (Bottlebrush), distant from the trees, but also located in the respondent's property. He contended that this Bottlebrush was also severely obstructing his views.
4. The Court moved to the applicants' dwelling, to assess view obstruction from nominated locations, and to take submissions. Looking from an upstairs terrace (V3) adjacent to the living room (V2), at the trees in the middle-distance, their form appeared much more uniform, as all had been lopped hard on various past occasions. This pruning technique had resulted in canopy redevelopment from largely vertical epicormic or sucker growth, rather than 'normal' extension growth. Though lopping of this type normally places trees under considerable stress, they remain relatively healthy and vigorous. I would suggest that this is largely because such pruning ceased over recent decades.
5. Other nominated upstairs viewing points are the main bedroom (V1), and dining room (V4), along with a lower floor Rumpus bedroom (V5).

Respondent Response

1. In his Respondent Response, Mr Christie noted that the trees "are endemic, Australian trees found throughout the Palm Beach area and its nature reserves". He adds that "there is no evidence that the Cheese trees are a hedge or were planted by Dr Christie", and he provided a statement from an adjacent neighbour, which noted that the trees predate Dr Christie's property purchase.
2. Further, Mr Christie contended that the Council have a longstanding and well known policy of not permitting removal of trees for views or of allowing topping. He substantiated this by attaching an excerpt titled, "What Council will not permit" from Council's website.
3. Mr Christie noted the role of the trees in providing shade, and privacy to his property from an adjacent neighbour's property, and from the applicants' property higher up the slope, and from the applicants' adjacent neighbour's properties. He also noted their contribution to the local ecosystem, through the provision of food for lorikeets, cockatoos and possums, and included a photograph ofa possum in one tree canopy, to reinforce the trees role as habitat.
4. Mr Christie also contended that "The applicant has failed to support his claims, with a qualified arborist report, that topping the Cheese trees by 60-70% would not have a detrimental effect on the shape and health of the trees. It is clearly false."
5. Finally, he notes that the survey provided by Mr Probert demonstrates that the trees and the Bottlebrush were about 10 metres high prior to the applicant's 2020 acquisition of the property. Mr Christie contends that the LEC "has previously determined that the height of a hedge and any obstruction of view commences at the date of purchase of the property" - July 2020 in this case. To illustrate this point, Mr Christie attached a photograph taken from RealEstate.com.au, which displays the views available from the rear of the balcony in September 2019.
6. As the 'Respondent Response' was inadvertently omitted from the Court file, prior to the proceedings, and because the applicant also claimed no knowledge of this document, I granted the applicant the opportunity to provide a written response to the Court. Mr Probert provided this 'Additional submission', on 5 July 2021, in accordance with the Court's lodgement requirements.

Applicant - Additional submission

1. This Additional submission initially notes an awareness that a Council permit could be required to prune the trees, and discusses the complicated situation surrounding application of such permit, with respect to the Standard, in this site context. Mr Probert notes his view, "confirmed by our consultant arboriculturist, that the trees in question form a hedge, and therefore are not amenity trees and are exempt from the standard".
2. He quotes the Gatenby report, which says, "The trees appear to have been planted as a hedge in the past and have been lopped as a hedge in the past. They will continue to grow and completely block out the view lines from your property as these trees form a long lived dense screen. They have also been planted, rather than self-sown, as they are in a row which also helps to identify them as a hedge".
3. Mr Probert contends that the trees could be pruned in accordance with the Standard to restore views, based on another comment from the Gatenby report. This says: "Proper reduction pruning of the trees can occur if a suitably qualified arborist is employed to carry out these works so that the lower screening can be encouraged to grow back."
4. Mr Probert, contrary to Mr Christie, claimed that Cheese Trees are "not endemic to the Palm Beach area". He references Palm Beach 1788-1988, by the Palm Beach Association, noting a chapter "which goes into great detail about the indigenous flora of the area". He contends that the absence of mention of Glochidion ferdinandi or Cheese tree in this chapter, gives reason to conclude that this species is introduced.
5. Mr Probert says that Mr Christie's assertion that the trees were self-sown strains credulity, because "it would be extremely serendipitous that they grew from seed at the same time, in a straight line directly behind the living areas of his house." He adds: "It is clear, however, that at some time in the past the trees were heavily lopped, probably to conform to the restriction on the title. The fact that the trees have grown back so vigorously proves that they tolerated heavy pruning in the past and would do so again."
6. In response to Mr Christie's claim, at the onsite hearing, that the trees could be 60 years old, Mr Probert discussed a recent inspection of the current view from his property, by members of the family who occupied his property from 1953 until 1974. He notes that they confirmed that the trees were not present during this period, but that "there was a large quantity of trees and bush at the rear of (the respondent's property) on the area now cleared as lawn, and there was an amicable arrangement between the neighbours that whenever these trees started to encroach on the view" from (the applicant's property), the then owner of the affected property was allowed to have them pruned. Mr Probert adds, "Therefore, we know that the trees were not there in 1974."
7. Mr Probert disputes the importance of the trees in providing privacy for Mr Christie, on the basis that the crown lifting Mr Christie's contracted arborist's completed, as part of the recent pruning, had newly provided "a clear view of Mr Christie's property including the shiny new roof". Mr Probert also cast aspersions on Mr Christie's concern for the local ecosystem, by questioning the rationale for the removal of a Lemon Scented Gum, which Mr Christie included (with Council permission), in the recent works.
8. Mr Probert contends that "Mr Christie's assertion about the effect of a heavy prune is not supported by the facts", suggesting that because the trees were heavily pruned in the past, as displayed in Mr Christie's photographs, yet grew back vigorously, "it also proves by example that the trees will not die by pruning to the Covenant height" (according to the Gatenby report).
9. As to Mr Christie's comment about the trees being 10 metres high prior to the applicant's 2020 acquisition of the property, Mr Probert contends this is irrelevant, because of the restrictive covenant on Dr Christie's property, in place since 1991.

Jurisdictional requirements

1. As the issue of the restrictive covenant on the title of the respondent's property could have a major bearing on the outcome of these proceedings, I sought the advice of Chief Justice Preston. His Honour confirmed that I have no scope or powers under the Trees Act, to make orders as a result of the restrictive covenant. As such, the covenant has no status in these proceedings. Mr and Mrs Probert may, however, seek to enforce the covenant under some other Court and jurisdiction.
2. In Pt 2A matters under the Trees Act, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].
3. The Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views, or, of sunlight to windows of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits that the trees provide.

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. Section 14A(1) states: 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. After my inspection and consideration of the trees in site context, I am not satisfied that they are planted so as to form a hedge. I agree with the respondent's submission, that it is more likely that the trees were self-sown, than "planted". As noted at [11], the irregular spacing and non-linear pattern is not typical of our 'ordinary understanding' of a hedge, particularly one comprising so few trees.
4. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), at [11]-[37], Preston CJ examines the language of s 14A(1)(a) with respect to trees which are self-seeded, as opposed to being planted.
5. At [38] of Johnson, his Honour notes; "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees."
6. As mentioned above at [12], the trunk base of one of the trees was enveloped in sandstone, having likely initially grown in a gap or cracks amongst the sandstone. This location provided no genuine opportunity for planting. I noticed various smaller Cheese tree specimens in the surrounding garden beds, and in a neighbouring property, located such that they had almost certainly been self-sown. Some, emerging from cracks in paths, or path edges, had been cut low and regrown.
7. I am not persuaded by Mr Probert's argument that the trees are not endemic to Palm Beach, because they are not mentioned in Palm Beach 1788-1988. As noted on the website of Angus Stewart, which Mr Probert also referenced, Cheese tree seed is spread by birds, which, of course, do not recognise suburban boundaries. Upon leaving the onsite hearing, I inspected adjacent bushland and residential gardens, and saw many examples of this species, some in dense stands, almost weed like. I am satisfied that these were similarly self-sown.
8. Verbatim from the applicants' 'Additional submission' may shed light on the trees' likely origins. As noted at [26], members of the family who occupied his property from 1953 until 1974, confirmed that the trees were not present during this period, but that "there was a large quantity of trees and bush at the rear of (the respondent's property) on the area now cleared as lawn, and there was an amicable arrangement between the neighbours that whenever these trees started to encroach on the view" from (the applicants' property), the then owner of the affected property was allowed to have them pruned." This lawn area is the current location of the trees and at some point after 1974, this pruning ceased.
9. Based on the arboricultural expertise I bring to the matter, I estimate the trees' age at around fifty years, possibly older. They are all of the same age class, in middle maturity, but may be different ages. Being locally endemic, these four trees are likely to be remnants, of this aforementioned bush. Over intervening years, most of this 'bush' vegetation must have been cleared, whether as a discrete project, or progressively over time, thinning out other trees until only these four remain.
10. In his Additional submission, Mr Probert notes that we don't know who planted the trees, and "Who planted the trees, and when, is irrelevant." Quite the contrary, the onus is on the applicant to prove their case, and that the trees are planted is an integral element so as to satisfy the requirements of the Trees Act. Therefore, Mr Probert must prove that the trees being planted so as to form a hedge is the more probable situation in this context.
11. In the absence of a 'planting' scenario being provided, the following might fit the known facts; the applicant's prior owner friend left the property in 1974. At some time, probably within the next five years, the bush was cleared, at least in the main, and four young saplings were planted, many metres apart, with uneven spacing, in a gentle loose serpentine pattern, with at least one inserted into a small crack in the sandstone. One might claim it was visionary, but, to me, it beggars belief to suggest that such a planting, had it happened, would have been executed so as 'to form a hedge'.
12. I find the explanation at [41], of remnant bush trees, originally self-sown and then retained far more likely than the trees having been planted. It is quite likely that progressive retention selection may well have been based on the trees position, towards creating screening, and providing and maintaining privacy. This, however, is quite different from being planted, so as to form a hedge.
13. Even if the reality was different again, neither Mr Probert, nor Mr Gatenby have provided adequate evidence to substantiate their contention that the trees were planted so as to form a hedge. Mr Gatenby says they're in a straight line, but on site reality disproves this. No explanation is offered for the large, non-uniform spacing between the trees, by either Mr Probert or Mr Gatenby.
14. To the contrary, from Mr Probert's evidence, we know that up to 1974, "there was a large quantity of trees and bush at the rear of (the respondent's property) on the area now cleared as lawn". Being endemic, Cheese trees were a likely component of this bush. Perhaps the trees' qualities, and/or human intervention, has led to these four trees dominating the space.
15. As a consequence of these considerations, s 14A(1) is not satisfied for this hedge.
16. Even if these trees had been deemed a hedge, the Bottlebrush could not be considered part of such a hedge. It is distant from the trees, and its form bears no relationship to them. Therefore, no remedy is available for this Bottlebrush under Part 2A of the Trees Act.
17. If I was incorrect, and the trees were planted so as to form a hedge, the Court would next consider s 14B. This states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner (a) sunlight to a window of a dwelling situated on the applicant's 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.
18. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. Initially, Mr Probert dealt directly with Mr Christie, in person and by phone, and then through his lawyer, for a further six months. Therefore, I am satisfied that the applicants have met the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and s 14E(1)(a) is engaged.
19. The next step is to assess the severity of the obstruction of view from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
20. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (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.
21. The Macquarie Dictionary defines '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 fulfill. 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 Trees Act sets a high bar.
22. The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145 (Haindl). Moore SC and Hewett AC at [26] 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."
23. At [64] of Haindl, they say: "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 quantitative and qualitative 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 to that view."
24. This latter scenario is similar to the situation found here. The views that Mr Probert covets, in his words "the most critical elements of the view, i.e. the world famous and iconic views of Palm Beach and Barrenjoey headland", are largely obstructed by Mr Christie's trees. However, the overall available views from this location are remarkable, across a span of about 180 degrees, and include district views, expanses of the Hawkesbury River, Lion Island, partial and filtered views of Barrenjoey headland and beach available through tree canopies, and a broad sweep of the Pacific Ocean.
25. The trees are far from, and down slope from the applicants' dwelling, about 25 metres across their lawn, and a further 20 metres beyond the common boundary. Using Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), to assist in assessing view sharing, I take guidance from the third step, at [28], which recommends assessment of the impact for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas, and thus V1 and V5, are de-prioritised.
26. Given this considerable distance between the dwelling and the trees, there is little variability in the impact of the obstruction between the nominated viewing points, however, the upstairs terrace (V3) and the adjacent living room (V2), should be considered of most importance. Step two of Tenacity says that "sitting views are more difficult to protect than standing views".
27. Considered only qualitatively from V2 and V3, this narrow obstruction may be considered severe. However, because the trees obstruct no more than 20% of the span of the total available views, which still includes expanses of water, land/water interfaces, and the 'iconic' Lion Island, when also considered quantitatively, it is not reasonable to conclude that the overall view obstruction, as a result of the trees, is as high as severe, and thus 14E(2)(a)(ii) is not engaged.

Does the severity of the obstruction outweighs other matters?

1. Had I determined the view obstruction to be severe, and s 14E(2)(a)(ii) was met for the hedge, there would be a need to consider the balancing of interests required by s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (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. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required: 1. The trees contribute to the local ecosystem, through the provision of food for lorikeets, cockatoos and other birds, and habitat for possums, at least. Mr Probert cast aspersions on the sincerity of Mr Christie's environmental credentials due to his removal of a Lemon scented gum, but he was presumptuous in dismissing and condemning Mr Christie's removal rationale, in the absence of more background information. The presence of a bushland reserve about 150 metres away, does not offset the role or significance of these trees (subs (g)). 2. The trees provide a contribution to the natural landscape and scenic value of the land on which they are situated (subs (h)). 3. The trees may provide benefit with soil stability, and absorption of water on the slope, particularly after periods of heavy rainfall (subs (i)). 4. With respect to pruning, I agree with Mr Christie that it is not possible to satisfy the Standard with the pruning desired and requested by Mr Probert. With respect to Mr Gatenby's advice that "Proper reduction pruning of the trees can occur if a suitably qualified arborist is employed to carry out these works so that the lower screening can be encouraged to grow back", it is no easier to change 'lopping or topping' as desired by Mr Probert, into 'proper reduction pruning', regardless of how qualified the arborist is, than it is to make a silk purse from a sow's ear. 5. I view Mr Gatenby's suggestion that the works could be completed under the pruning class 'Reduction pruning' as a cynical manipulation. These proposed works can be classified only as lopping or topping, and the six reasons listed in the Standard to explain why lopping or topping is an unacceptable arboricultural practice, would all apply. Further, contrary to Mr Gatenby's and Mr Probert's opinion, repeated pruning of these long mature trees, is likely to result in significant stress (subs (k)). 6. The hedge makes a significant contribution to providing privacy for the respondent. Though Mr Probert questioned the trees' importance in performing this role, because the recent pruning reduced privacy between his and the respondent's properties, Mr Probert is only considering the impact on himself. In discussing privacy in his Respondent Response, Mr Christie also noted the privacy the trees provide from the two and three storey dwellings of Mr Probert's adjacent neighbours, and his own adjacent neighbour.
3. Taking the applicant's case at its highest with respect to the various locations on the upper level of the dwelling, and, hypothetically, treating views from the upper level as being severely obstructed, I am of the opinion that the benefits to be obtained by the applicant by removal of the obstruction of his views cannot outweigh all of these factors in favour of retaining the trees as is. In particular, the interests of the present and future owner of the property upon which the trees are located in preserving the privacy and ecosystem services of the trees are, in themselves, of sufficient importance to warrant the retention of the trees without interference with them.

Have the trees grown into the view during the applicant's occupation?

1. Mr Christie's final point in his Respondent Response addresses the question of whether the trees grown into the view during the applicant's occupation. Mr Probert contended that this is irrelevant, because of the restrictive covenant on Dr Christie's property, in place since 1991. Given that the covenant has no standing under the Trees Act, this issue is highly relevant.
2. The Interpretation Act 1987 permits reference to a limited range of extrinsic material to assist in interpreting the Trees Act. In this regard, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (the Review).
3. On page 39 the Review describes the scope of the Trees Act. In part, this says: "It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access (or in this case views) which had not existed at the time of purchase".
4. It is relevant to note that this Court, under the jurisdiction of the Trees Act, has consistently determined that an applicant is not entitled to a view which was not available to him when he purchased the property: see Fyday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150.

Conclusions

1. Mr and Mrs Probert made an application under the Trees Act, seeking pruning of a 'hedge' and a Bottlebrush, "to the height specified in the restriction to the title of the respondent's property, as per attached Survey". Based on advice from Preston CJ, there is no remedy available under the Trees Act, to satisfy the terms of this restrictive covenant. Therefore, this matter was assessed only under the framework of Part 2A of the Trees Act.
2. I am not satisfied that the trees have been planted, and adequate evidence has not been provided to substantiate that they were. Based on Mr Probert's own evidence, it is more likely the trees were self-sown in bushland, which used to separate the properties. Therefore, s 14A(1)(a) is not engaged.
3. Even if I was wrong, and the trees were planted so as to form a hedge, because they are so distant from the relevant viewing locations, and therefore occupy a relatively small percentage of the available broad, outstanding view, I am not satisfied that the obstruction, as a result of the trees, should be considered to be severe, so s 14E(2)(a)(ii) is not engaged.
4. Even if I had considered the view obstruction to be severe, the privacy and other ecosystem services the trees provide are sufficiently important, and the likely cumulative impact of the proposed pruning is sufficiently dire, that the benefits to be obtained by the applicants by removal of the obstruction of his views cannot outweigh all of these factors in favour of retaining the trees as is.
5. Even if s 14A(1)(a) and s 14E(2)(a)(ii) had been engaged, and on consideration of s 14F factors, a determination was made that intervention with the trees was appropriate, Mr Christie is correct that Part 2A of the Trees Act applies when trees grow to cause a severe view obstruction during an applicant's occupation. Noting the Review of the Trees Act, at page 39, "It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access (or in this case views) which had not existed at the time of purchase".

Orders

1. As a result of all these considerations, the orders of the Court are: 1. The application is dismissed.

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: 10 September 2021