COMMISSIONER: The applicant purchased his Bonny Hills property in 2005. He contends that at that time he had uninterrupted views from the living areas of his dwelling of Lighthouse Beach to the north-northwest. The applicant submits that trees growing at the rear of the respondent's property now severely obstruct those views.
As a consequence, the applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the trees to 4m and maintenance pruning every three months. The work is to be paid for by the respondent. In the alternative, the applicant seeks orders for the removal of the trees at the respondent's expense.
The respondent opposes the imposition of these orders on the basis that the trees were well-established when he and his wife purchased the property in about 2011; they value the trees for their shade and for the wildlife they support.
The on-site hearing commenced with an inspection of the trees from the respondent's property.
The applicant contends that he and another adjoining neighbour have always considered the trees to be a hedge because when seen from their properties, the canopies intermingle. The applicant stated on site that he and that other neighbour had permission from the previous owner of the respondent's property to trim the trees to the height of the guttering of the dwelling on the respondent's land. In his opinion the respondent had also agreed for the trees to be pruned. The respondent stated that he had agreed to a small amount of pruning but stopped all further pruning after he considered what had been removed to be far in excess of the amount agreed. He also stated that in his opinion, the trees were not a hedge.
After viewing the trees, I made a preliminary finding that the trees may not be trees to which the Part applies but to make full use of the time taken to travel to the site and to fully appreciate the applicant's concerns, the impact of the trees on the applicant's views would be observed.
The applicant's property is upslope and to the south of the respondent's property.
The nominated viewing points are V1 - Lounge room; V2 - adjoining verandah and outdoor entertainment area; V3/V4/ V5- family/dining/kitchen. The views in contention are views to the north and NNW of Rainbow Beach including the land/water interface, and the distant escarpment the northwest.
A photograph taken in January 2013 from V2 (after pruning of the trees) shows the views potentially available from the rear living areas of the applicant's dwelling. The roof of the respondent's dwelling partially obstructs the views of the beach.
During the hearing I made the following observations. The applicant has views to the east/ NE of the ocean which are unaffected by the respondent's trees. T1 partially obstructs views to the north of Rainbow Beach from V2, V3, V4 and V5 (on the north-eastern side of the respondent's roof). The other plants severely obstruct all nominated views to the north-western side of the respondent's roof from V1 and V2.
The applicant has recently constructed a roof-top viewing platform to take advantage of the panoramic views of the beach and ocean. This is unaffected by the trees.
[3]
Jurisdiction
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge?
Trees 1-5 are growing in a narrow garden bed between the common dividing fence and the respondent's back lawn (southern boundary). Tree 6 is on the western boundary.
The trees and spacing between them are provided in the Table below.
Tree number Species/common name Approximate distance to next tree (m)
1 Melaleuca bracteata/ Black tea-tree 2
2 Callistemon sp. /Bottlebrush 4
3 Callistemon sp./ Bottlebrush 1.5
4 Metrosideros sp/ NZ Christmas bush 3
5 Callistemon sp./ Bottlebrush 3.5 (diagonally)
6 Schinus terebinthifolius /Broad-leafed pepper tree
[4]
There are a number of smaller plants between some of the trees and other shrubs to the north of T6.
[5]
Findings - s 14A(1)(a)
In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants self-seeded or are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed. Of relevance in this matter:
37 I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted…so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue in that state of affairs of being planted so as to form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.
40 Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnson's submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.
41 But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed on its own terms and in the context of Part 2A, does not circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether are all of one species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge.
So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge". This has been applied from the point of viewing the trees from a respondent's land.
As the trees were planted by someone other than the respondent, it is not possible to explore the purpose or intent of the planting. It is not possible to establish whether the trees were planted at the same time or over an extended period. Further, the trees comprise a number of different species; while some are the same, the distances between them are not uniform as they generally would be if the intent were to form a hedge. With the horticultural expertise I bring to the Court, I consider the trees to have been randomly planted as individual specimens around the edge of the lawn. This is a very common form of landscaping whereby people seek to maximise an area of lawn or open space and create some form of screening from neighbouring properties. I accept the canopies have intermingled, however, as found in a number of other cases, this in itself does not meet the requirements of s 14A(1)(a) -(see for example Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339).
While I accept that trees 2-6 severely obstruct views from the applicant's dwelling, I cannot be satisfied, to the extent required by s 14A(1)(a) that the trees are trees to which the Part applies. As such the Court does not have the jurisdiction to consider the remaining tests in s 14E(2).
That being the finding, the only order the Court can make is that:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
[6]
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Decision last updated: 18 January 2017