Scott v Rooney

Land and Environment Court (NSW)|2019-12-05

Background to the application

The large front garden of the Mosman property belonging to Sofie and Christopher Scott ('the applicants') provides a pleasant outlook from their dwelling - an outlook that might include views of the harbour, Manly, and beyond to the Pacific Ocean, were it not for a hedge of Lilly Pillies on the neighbouring property belonging to Kristen Rooney ('the respondent').
The parties have discussed the issue of the hedge and, although Ms Rooney agrees to pruning the hedge, she does not agree to the proposed height for pruning and maintaining the trees. She also does not agree that her two Olive trees, which are adjacent to the Lilly Pillies, are part of the hedge.
The Scotts applied to the Court pursuant to s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the Lilly Pillies and Olives to be pruned and maintained at a height 100 mm below the top of the masonry wall along the common boundary shared by the two properties. During the hearing, the Scotts clarified that they no longer sought orders for a Jacaranda tree on Ms Rooney's property that was included in their application.
Ms Rooney proposed alternative orders for pruning and maintaining the Lilly Pillies, at her cost, at heights of 200 mm above the top of the masonry wall for those trees in the lower section of her garden bed, and 300 mm below existing tree height for those trees in the upper section of her garden bed.

Onsite hearing

The onsite hearing allowed the Court to observe the trees and their surrounding environment, the views from the applicants' dwelling, and the extent of view obstruction caused by trees in the Scotts' application. Evidence for the applicants came from Philip Thomas, a development consultant, and Catriona Mackenzie, consulting arborist. For the respondents, Dr Richard Lamb, a consultant specialising in visual impacts, gave evidence.

Framework for this decision

The row of Lilly Pillies alongside the boundary forms a hedge that is more than 2.5 metres tall, as required at s 14A(1) of the Trees Act. Ms Rooney does not dispute this, however she does dispute that her two Olives form part of the same hedge or form a separate hedge. Therefore I must determine if Part 2A of the Trees Act applies to the Olives, according to s 14A(1).
The Scotts have communicated with Ms Rooney for some time in an effort to reach agreement. I am satisfied that this effort is reasonable, as required by the Trees Act at s 14E(1)(a).
Ms Rooney disputes the Scotts' claim that her Lilly Pillies severely obstruct their views. Therefore I must determine if the trees severely obstruct a view from the Scotts' dwelling, and must be satisfied of this before I can make any orders (s 14E(2)(a)(ii) of the Trees Act).
Ms Rooney submitted that, even if the Court finds her trees cause a severe view obstruction, for reasons of privacy and amenity her alternative orders should be preferred over the Scotts' proposed orders. If I find other jurisdictional tests are met, after considering the matters at s 14F of the Trees Act, including privacy and amenity, according to s 14E(2)(b) I must determine if the Scotts' interests in having the trees pruned as they propose outweigh Ms Rooney's interests in having the trees pruned as she proposes, or otherwise as I see fit (s 14D).

The two Olive trees do not form a hedge

Mr Stapleton submitted that the two Olive trees form part of the same hedge as the Lilly Pillies, rather than forming a separate hedge of their own. He reasoned that, as their foliage touches the Lilly Pillies' foliage, together they form continuous hedge. Referring to Preston CJ's discussion of the defining features of a hedge in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, he argued that the Olives and Lilly Pillies are in close proximity. In Wisdom v Payn [2011] NSWLEC 1012 ('Wisdom'), said Mr Stapleton, the Court found at [45] that the arrangement of trees to form a hedge may be more than one tree deep and does not need to be in a straight line. He explained that it would be unreasonable for the applicants to gain orders for pruning the Lilly Pillies to restore their views, with the effects then negated by growth of the Olives. That is, the Olives should be included in orders due to their proximity and to prevent any future obstruction they may cause. From most viewpoints, they are in the same line of sight as the Lilly Pillies. Mr Stapleton argued that this would be the pragmatic outcome, reminding the Court that its powers are to give fair outcomes that finalise disputes.
Ms Berglund argued that the Olive trees are not part of the hedge: they are not in a straight line, so do not add to existing hedge; this is not a hedge that is two trees deep. She said the Olives are two individual trees that are planted close to a hedge; and, they do not form a second hedge of their own due to their separation, even though two trees can form a hedge. She also submitted that the Olives are not currently obstructing a view, so the Court has no jurisdiction over these trees.
I find that the two Olives are not part of the Lilly Pilly hedge. Nor do they form a separate hedge. The entire paragraph [45] in Wisdom to which Mr Stapleton referred is copied below. "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."
The two Olives do not extend the length of the hedge, but are planted alongside the hedge, one near each end of the hedge. The two trees are separated from each other - their foliage does not touch. They do not create a hedge that is two trees deep. If a person coming into the garden was asked to point to the hedge, they would be unlikely to include these two trees when pointing to the Lilly Pillies.

The Lilly Pillies severely obstruct the applicants' view

The applicant took the Court to the four parts of the dwelling from which the view is obstructed by the hedge: the deck and also standing in the adjacent living room (V1); the dining room (V2); the kitchen (V3); and another living room (V4). Photographs provided by the applicants showed that views of the harbour, Manly and the ocean were, to varying degrees, available from these areas before the Lilly Pillies grew above the wall.
Dr Lamb observed that the obstruction was severe for part of the view, but noted the boundary wall is now higher than in early photos. Despite the slight increase in wall height, I am satisfied that water views would still be available above the wall.
The trees severely obstruct a view. I must consider matters at s 14F to determine if the applicants' interests outweigh reasons not to interfere with the trees (s 14E(2)(b)), and the nature of any orders.

Relevant matters

The trees are alongside the boundary. They have reached 2.5 metres, and have grown into the applicants' views, during the time they have lived here. The trees are evergreen - their visual screening persists throughout the seasons.
There was some dispute about whether the trees satisfied the requirements of approved landscape plans. Ms Berglund argued that this was not the relevant jurisdiction for dealing with that. While it is true that the Trees Act does not provide jurisdiction for enforcing development consent, development consent conditions may be considered in making this decision. However there was nothing presented regarding the plans that is material to my decision here. Approved landscape plans for an earlier development of the respondent's property included a row of Podocarpus along this boundary to a height of 2 metres, which was below the top of the existing wall. Mr Stapleton argued that this demonstrated the landscape architect thought no screening was required above the wall. It is not clear to me whether the height specified was for a minimum or maximum height of those plants. Although the species has now been changed, Mr Stapleton says the 2-metre height should be maintained as a maximum height. To my mind, it would have been difficult for the landscape architect to consider all relevant sight lines when specifying a height for that planting. The roundness of the number (2 metres) does not suggest a height calculated precisely. With the benefit of detailed assessment of the view impacts at the onsite hearing, I find the best outcome for both parties should be based on the observations, evidence and submissions before me.
The trees' value is limited to their amenity. For Ms Rooney, they provide a green border to her front garden and they screen the solid boundary wall from her dwelling and garden. They provide little privacy, with most of the privacy screening between the two dwellings provided by the figs further to the west. Dr Lamb took the Court to a part of the applicants' pool deck where, standing next to a gate, a sight line existed to the respondent's upper windows and part of the front balcony. People are unlikely to spend time standing at any of these areas, so the Lilly Pillies' contribution to privacy is negligible.
Ms Rooney's principal issue with pruning below the top of the wall is that this will affect her amenity. She would prefer to see only foliage, not the top section of the boundary wall.
Ms Mackenzie stated that the impact of pruning on the Lilly Pillies should be minimised as much as possible - the proposed pruning would require some large-diameter cuts, especially for the trees in the upper level of the garden bed. I concur with this. The negative impact of pruning the upper-level trees below wall height outweighs the benefits gained. Impacts of pruning the lower trees below wall height would be less severe.
Based on her observations of regrowth since the trees were pruned some eight weeks before the hearing, Ms Mackenzie formed a view that the trees would repeatedly grow 200-400 mm every 2-3 months, so a greater reduction in height is required, or more frequent pruning. This might be overstated - while this amount of growth might be a likely response to the initial pruning, once the top of the hedge is being maintained regularly at that height the regrowth should be less vigorous.

Severity of the view obstruction

Dr Lamb observed that a distant tree is also within the view line. However, the obstruction caused by the distant tree is minor - indeed the tree forms part of the landscape view available from the applicants' dwelling.
Ms Berglund argued that the view should not be split into its separate components, taking the Court to Haindl v Daisch [2011] NSWLEC 1145 ('Haindl') at [26], where Moore SC (as His Honour then was) and Hewett AC wrote: "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."
However, recognising the value of water views does not require slicing of the entire view. In Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity'), Roseth SC's view-sharing principle included at [26]: "The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. 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, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured."
While Haindl shows that it is unreasonable to choose one part of an overall view and find that its obstruction alone must equate to a severe view obstruction, Tenacity clarifies that a part of the overall view might be more valuable than other parts. Obstruction of the most valuable part of a view might equate to a severe view obstruction, and here I find that to be the case.
While Roseth SC stated at the Tenacity principle's second step that the "…the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries", that matter specifically addressed built form, not vegetation in front and rear gardens. The applicants' view is across the side boundary of their front garden. It is not reasonable built development that obstructs this view (as per Tenacity's fourth step), but discretionary vegetation, the pruning of which would seem reasonable relative to the benefits for the applicants.
The view loss is from high-use areas of the dwelling: a deck, living rooms, the dining room and the kitchen. Ms Berglund argued that the view obstruction could only be severe from one of the living areas (V4), as the extent of available view diminishes from the other viewing points due to their viewing angle. She submitted that less weight should be given to the view from the kitchen (V3) as people would be unlikely to spend much time at its western end, where the view loss occurs. I noted the view loss was significant from all the application's viewing points. The kitchen is a frequently used area. In Tenacity's third step, Roseth SC wrote (with my emphasis in bold): "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)." (at [28])

Conclusion

The Lilly Pilly hedge severely obstructs the Scotts' views. The value of regaining their views outweighs any reasons not to interfere with the trees. To minimise any loss of amenity to Ms Rooney, and any adverse impacts to the trees, the hedge should be maintained above (trees in the upper level of the garden bed) or at (those in the lower section) the height of the top of the boundary wall. This should maintain the visual screening of the wall for Ms Rooney, although her amenity may be affected briefly by the bare tops of the trees.
The trees will need to be pruned three times a year, in February, June and October. The three trees in the upper level should be maintained 100 mm above wall height, while the remaining trees are to be maintained at wall height. To best achieve this, the first pruning is to be 100 mm below these respective heights to allow for the initial regrowth and so that ongoing pruning will be clear of the larger woody branches and stems.

Orders

As a result of the foregoing, the Court orders: 1. The application is granted. 2. Within 30 days of the date of these orders the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows: 1. The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to the height of the top of the lower section of the boundary wall. 2. The remaining trees are to be pruned to a height of 100 mm below the top of the lower section of the boundary wall. 1. On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above. 2. During the months of February, June and October, beginning June 2020, the respondent is to prune all Lilly Pilly trees in the hedge along the common boundary they share with the applicants as follows: 1. The three trees at the western end of the hedge (nearest the dwelling) are to be pruned to a height no greater than 100 mm above the top of the lower section of the boundary wall. 2. The remaining trees are to be pruned to the height of the top of the lower section of the boundary wall. 1. On reasonable notice, the applicants are to allow any access required during reasonable hours of the day to clean up any debris that falls into their property as a result of the works above.

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: 25 February 2020

(2012) 190 LGERA 334

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