Do the trees form a hedge?
6The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act? There are ten trees subject to this application.
7Tree 1 (T1) is described in the application as a Kentia Palm ( Howea forsteriana ). It is in fact a Golden Cane Palm ( Dypsis lutescens ). This palm is the end plant in a row of Golden Cane palms planted along the rear eastern boundary of the respondents' property. It joins a row of Photinia sp, T2-T7, planted in a narrow garden bed on top of a retaining wall along the southern boundary of the respondents' property.
8Trees 8 and 9 are two older Cocos Palms ( Syagrus romanzoffiana ) planted some 18 years ago in the lawn to the north of the retaining wall. They are about 5m apart.
9Tree 10 is identified in an arborist's report obtained by the respondents as a China Doll Tree ( Radermachera sinica) . This tree is some 5m to the north of the retaining wall across a lawn.
10The applicants contend that as the trees, especially the Cocos palms and the China Doll Tree, obstruct their views, the trees should be considered as a hedge for the purpose of the Act.
11Section 14A(1) states:
(1) This Part applies only to groups of two 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).
12What constitutes a 'hedge' is discussed in a number of judgments including, amongst others, Wisdom v Payn [2011] NSWLEC 1012 and McLaren v Lewis [2011] NSWLEC 1170. Relevantly in Wisdom v Payn Moore SC and Hewett AC at [44]-[46] 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.
13In McLaren v Lewis [2011] NSWLEC 1170, this 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.
14Given these findings, I am not satisfied that tree 10 forms part of a hedge. It is 5m from the more linearly arranged plants along the southern boundary and, as such, it reads as a single specimen tree and not as part of a hedge. Therefore s 14A(1) does not apply to this tree and the Court has no jurisdiction to make an order for any intervention with tree. Therefore this element of the application is dismissed.
15I am satisfied that the Golden Cane Palm (T1) and the Photinias (T2-T7) are arranged and spaced in a manner that would be considered to be a hedge in any ordinary understanding of the word.
16While the heights of the trees were not measured at the hearing, it was observed that a number of the Photinias had been pruned and appeared to be less than 2.5m. However, the Golden Cane Palm to the east and several other Photinias to the west were clearly in excess of 2.5m. That is, two or more trees in the group have exceeded the requisite height, and thus the jurisdiction is engaged for trees 1-7. This has been discussed in Wisdom at [66] - [67].
17With respect to the Cocos palms, they were planted approximately ten years before the other plants. They are about 5 m apart. One analysis of the planting arrangement could be that the Cocos palms are two individual specimens, and in the alternative, that the trees have been incorporated into the planting along the southern boundary of the respondents' property. The Act sets no requirements that the plants subject to the application must be of the same species or planted at the same time. Given the findings in Wisdom regarding the linear arrangement of plants, and in putting the applicants' case at its highest, I am prepared to accept that the Cocos Palms form part of the hedge along the rear/ southern boundary of the respondents' property, and therefore that s 14A(1) applies to these trees.