Torday & Anor v Eather

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.

Obstruction of views 18As section 14A is satisfied for trees 1-9, the next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of trees 1-9. 19Section 14E(2)(a)(ii) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land, 20I note in the application that concerns are raised about future view loss. The engagement of the jurisdiction requires the obstruction of a view to be 'severe' at the time of the hearing because of the use of the word 'are' in s 14E(2)(a)(ii). This has been discussed in Tooth v McCombie [2011] NSWLEC 1004 at [14] -[15] and at length in Granthum. Therefore the following consideration of any obstruction of view loss is made on that basis. 21The applicants' dwelling is situated behind and upslope of that of the respondents. Both dwellings face north. The nominated viewing points are windows and a terrace on the ground floor, and a deck and windows on the upper level. The views in contention are to the north of Stanwell Park Village, the forested district and headland; and to the northeast, views of the ocean, horizon, and Stanwell Park beach. 22Viewing points 3 and 4 (V3 and V4) are the north-facing ground floor windows and associated small outdoor terrace of a self-contained flat occasionally used as a studio/ music room. The applicants contend that T1, the Golden Cane Palm, severely obstructs their view of the water to the northeast. They say both sitting and standing views are obstructed. 23I note that T1 does obstruct part of the view to the northeast, the severity is influenced by where one sits or stands and the relative height of the person doing the viewing. I note that the district views to the north are largely unobstructed. 24Before considering the severity of any obstruction, it is relevant to consider the words a view as used in s 14 of the Act. This is considered in Haindl v Daisch [2011] NSWLEC 1145 by Moore SC and Hewett AC at [26]: 26 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. 25In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah [2004] NSWLEC 140. The first three steps of the four-step process are considered relevant to Part 2A. 26In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 27In applying those principles to this matter, the view in contention is a partial view of water and the interface with the land across a side boundary. Depending on where one sits or stands, the view across that boundary is partly obscured by the applicants' own shrubs. Beyond the boundary there are structures as well as other trees in the distance. The rooms from which the view is said to be lost are not the prime living areas that the applicants press in their application. Photographs in the application focus on the upper deck and living room. I agree that the palm does obscure part of the view to the north-east, however it is only part of the overall view available from V3 and V4. I consider the impact on the view to be moderate and not severe. While the taller of the canes could be selectively pruned, as the impact is not severe, no Court orders can be made for any interference with tree 1. 28The remaining viewing points are on the upper level of the applicants' dwelling. V1 and V2 are the deck with V1 being the main outdoor dining area featured in the photographs accompanying the application. 29The applicants contend that the Cocos palms severely obstruct views of Stanwell Park village, the forested backdrop and headland to the north, and part of the ocean/ beach to the north-east. They say that the only unobstructed view is to the east. 30V8 is the living room off V1 and has similar views to V1; V7 is the kitchen, with similar views to V1 and V2; and V6 and V5 are from the bedroom with little obstruction of the water views and some obstruction of the village by one of the palms. 31At the on-site hearing I noted that while the Cocos Palms are part of the view, they currently could not be said to severely obstruct any of the district or ocean views from any of the nominated viewing points. 32The word 'severe' sets the bar high. This has been discussed in a number of judgments including Ball v Bahramali & Anor [2010] NSWLEC 1334. While the photographs in the application suggest that the palms may have caused a much greater obstruction at the time the application was made, they do not presently severely obstruct any view from the applicants' dwelling. In response to the application, the respondents engaged an arborist and on the advice they received they pruned the palms and other trees in order to reduce the impact on the applicants' views. 33The unpruned Photinias at the western end of the row do not severely obstruct any views. 34Therefore as s 14E(2)(a)(ii) is not met for trees 1-9, there is no need to consider the balancing of interests required by s 14E(2)(b). 35As a consequence of the forgoing, the Orders of the Court are: (1) The application is dismissed.

J Fakes Commissioner of the Court 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: 27 January 2012