Unsworth v Hennessy

The dissatisfied neighbour appeals

1. Mrs Unsworth has appealed against the Commissioner's decision and orders under s 56A(1) of the Land and Environment Court Act 1979 (NSW) (Court Act). This appeal is limited to questions of law. Mrs Unsworth pressed six of the grounds raised in her Amended Summons Commencing an Appeal, which may be grouped as: 1. errors in interpretation and application of ss 14D and 14E of the Trees Act: the Commissioner misconstrued the Court's jurisdiction under ss 14D and 14E of the Trees Act, asked the wrong question, and took into account irrelevant considerations by assessing whether the trees of the hedge would cause a severe obstruction if they were present at a height 200mm higher than they existed at the date of the hearing (grounds 1A and 1(a) and (b)); 2. error in order under s 14D of the Tree Act: the Commissioner erred in making an order under s 14D of the Trees Act for the pruning of trees of the hedge not found to cause any obstruction of a view from Mrs Hennessy's house (ground 1(c)); 3. error in interpretation and application of s 14E: the Commissioner erred by incorrectly interpreting the phrase "are severely obstructing a view" in s 14E(2)(a)(ii) of the Trees Act by not determining the degree of view obstruction on the day of the hearing (ground 2); and 4. denial of procedural fairness: the Commissioner failed to afford Mrs Unsworth procedural fairness by determining the application by reference to the factual assumption that the most likely ongoing state of affairs was a hedge approximately 200mm taller than the trees' height on the day of the hearing and assessing the degree of obstruction by reference to this notional hedge, without giving Mrs Unsworth a reasonable opportunity to address that assumption and assessment of a notional hedge (ground 3).
2. The alleged errors on questions of law can be simplified to be threefold: 1. misinterpreting and misapplying s 14E(2)(a)(ii) of the Trees Act by assessing the degree of obstruction of the view from Mrs Hennessy's house not by the degree of obstruction of the trees of the hedge as they existed at the date of the hearing but instead by the degree of obstruction of the trees as they would be under the most likely state of affairs of being 200mm taller than the trees' height on the day of the hearing (the erroneous date of assessment issue); 2. misinterpreting and misapplying s 14D(1) of the Trees Act by not limiting the order for pruning to only those trees of the hedge found to cause a severe obstruction of the view from Mrs Hennessy's house but instead ordering pruning of all of the trees in the hedge (the erroneous order issue); and 3. denying Mrs Unsworth procedural fairness by not giving her a reasonable opportunity to address the Commissioner's assessment of the degree of obstruction of the view on the assumption of the trees being 200mm higher than they were on the day of the hearing (the procedural fairness issue).
3. I will address the appeal by reference to these three issues.

The erroneous date of assessment issue

1. Mrs Unsworth argued that by pruning the trees of the hedge to reduce their height, at various times after the application was filed with the Court including two days before the hearing, she changed the factual basis upon which the Court was obliged to assess the degree of obstruction under s 14E(2)(a) of the Trees Act. The Court could not consider the degree of obstruction that occurred as a consequence of the trees being at the height the trees were at the time Mrs Hennessy applied to the Court for an order to remedy, restrain or prevent the obstruction. And the Court could not consider the degree of obstruction that will occur as a consequence of the trees being allowed to grow back to that height, as Mrs Unsworth said she intended to do. Instead, Mrs Unsworth argued the Court was obliged to assess the degree of obstruction as a consequence of the trees at the height she opportunistically had pruned them to at the moment in time the hearing happened to take place.
2. Mrs Unsworth argued that assessment of the degree of obstruction at this time is demanded by the use of the present tense of the verb to obstruct in s 14E(2)(a) of the Trees Act. That paragraph provides: "(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".
3. Mrs Unsworth submitted that the use of the present tense "are obstructing" directs attention to a presently existing state of affairs. This state of affairs is the condition of the trees, including their height, and the obstruction of sunlight or a view that the trees cause, on the day of the hearing. Mrs Unsworth cited a Commissioner's decision, Tooth v McCombie [2011] NSWLEC 1004 at [14], as supporting this construction of s 14E(2)(a)(ii).
4. Mrs Unsworth submitted the Commissioner's construction of s 14E(2)(a)(ii) in [15], following his approach in Steber v Job [2019] NSWLEC 1308 at [35]-[41], is inconsistent with the use of the present tense "are obstructing". Mrs Unsworth submitted: "It does considerable violence to the text of the Act to conclude that trees which are not severely obstructing a view from a dwelling, but would severely obstruct a view if they reached a different state in the future, can be described as trees that 'are severely obstructing' a view": Appellant's Outline of Submissions, [14].
5. Mrs Unsworth submitted that the Commissioner's construction would require: "the creation of a series of alternative concepts to make the Act operate in a different context. It requires some notion of what is likely to be the future condition of the trees, which in turn requires some notion of how that should be assessed and who bears the onus": Appellant's Outline of Submissions, [17].
6. The Commissioner's test requires a finding of "what is most likely the ongoing state of affairs" and assessing the degree of obstruction of a view as a consequence of that ongoing state of affairs. Mrs Unsworth submitted there is no legislative support for this test: Appellant's Outline of Submissions, [17].
7. Mrs Unsworth submitted that: "The approach to the Trees Act adopted by the Commissioner in the present case (and in Steber) requires the Court to make an assessment of both the proximity in time to the hearing of the severe obstruction (ie to ask whether the obstruction was 'recent') and the future probability of the severe obstruction recurring (ie to ask whether it is 'likely' to continue or recur, and with what frequency). Neither of those requirements emerge from the words actually used in s 14E of the Trees Act. Such an interpretation is liable to generate inconsistent and capricious outcomes": Appellant's Outline of Submissions, [18].
8. Mrs Unsworth submitted that a construction confining the assessment of the degree of obstruction to the present condition of the trees, and not the ongoing state of affairs, accords with the principle of legality: "Here there is no ambiguity in the Trees Act, given the clear language of s 14D and the absence of any textual or contextual indication that the legislature intended to deal with obstructions that might have existed in the past or might exist in the future if trees assume a certain form. But even if any ambiguity were to be perceived, that ambiguity must be resolved in favour of the protection of the fundamental right of a landowner to enjoy their own property. There is no textual basis, let alone clear and unambiguous words, extending the Trees Act to trees that have in the past caused, or that might in the future cause, a severe obstruction": Appellant's Outline of Submissions, [20].
9. Mrs Unsworth submitted that the Commissioner's misinterpretation of s 14E(2)(a) was material. The Commissioner applied his interpretation, based on his prior approach in Steber v Job, to assess the view obstruction having regard to what is most likely the ongoing state of affairs of the trees. That is what the Commissioner said he did (at [15]) and what he did (in [16]-[24]).
10. Mrs Hennessy contested Mrs Unsworth's construction of s 14E(2)(a)(ii) of the Trees Act. The drafter selected the present progressive tense of the verb to obstruct, "are obstructing", instead of the present simple tense, "obstruct". The present progressive tense is used for an ongoing action or condition in the present and also to describe an action or condition that is going to happen in the future. The present simple tense is used for an action or a condition happening right now or a habitual action or occurrence. The grammatical choice of the drafter supports the Commissioner's construction of s 14E(2)(a)(ii) as referring to "what is most likely the ongoing state of affairs."
11. Mrs Hennessy submitted that this construction of "are severely obstructing" in s 14E(2)(a)(ii) does not change the statutory test. The question of whether trees "are severely obstructing" a view is answered having regard to the condition of the trees concerned over a longer timescale than the single day of the hearing. To restrict the assessment of the degree of obstruction of a view to only the day of the hearing would be to "import unnecessary words into the statute that are inconsistent with its purpose": Respondent's Outline of Submissions, [13].
12. Mrs Hennessy challenged the arbitrariness of construing "are severely obstructing" as requiring an assessment of the degree of obstruction only on the day of the hearing, whenever that hearing might be fixed by the Court: "The artificiality of the Appellant's proposed construction can also be shown by asking why, if (contrary to the Commissioner's approach and to the Respondent's contention) the present tense in section 14E(2)(a)(ii) is confined to a single day, that day is not (i) the day that the application was filed; or (ii) the day the orders are made. As to (i), it is the usual position that legal proceedings are determined by application of the law that applies on the day the proceedings are commenced. As to (ii), making orders based on satisfaction of a statutory criterion expressed in the present tense necessarily involves satisfaction of that criterion on the day the orders are made. However, the Appellant does not advance either of those interpretations, instead suggesting that the provision be read down to refer to a single day able to be identified only after the usual steps of case preparation have occurred (including, here, the parties' evidence of the hedge and its obstruction of a view) and it is convenient to the Court to list the matter for hearing. That approach should be rejected": Respondent's Outline of Submissions, [14].
13. Mrs Hennessy submitted that the principle of legality does not assist Mrs Unsworth in "her overly narrow interpretation of the statute." Mrs Hennessy submitted that the principle of legality has "limited application to the interpretation of legislation that has amongst its objects the interference with the particular right in respect of which the principle is sought to be invoked", citing Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39 at [314]. As stated in Lee, "[t]he simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'." Here, the Trees Act intended to interfere with property rights: Respondent's Outline of Submissions, [15].
14. Mrs Hennessy submitted that construing "are severely obstructing" as enabling an assessment of the degree of obstruction over a longer time scale than just the single day of the hearing is consistent with the statutory purpose: "In circumstances where a neighbour has pruned a hedge shortly before a hearing, in this case intentionally so, it is not the case that there is neither need nor basis for the Court to intervene, contrary to AOS [22]. A single pruning before the hearing may or may not provide temporary resolution of the dispute. The Court's powers under section 14D enable orders to be made for a hedge to be trimmed on a periodic basis to restrain or prevent the obstruction of a view and to maintain a tree at a particular height. As recognised in Steber at [43], some trees (in that case, bamboo, and in this case lilly pillies) grow quickly with the result that despite pruning shortly before the hearing the obstruction will occur again soon. Considering a longer timescale than the day of the hearing when determining the question 'are severely obstructing' is consistent with the statutory objective of providing a process for resolving disputes between neighbours about trees. If the litigation can be frustrated by pruning shortly before a hearing that temporarily removes or reduces the obstruction, the legislative purpose is not served and the dispute between the neighbours about the trees has not been resolved. The Court would not adopt an interpretation of the statute that amounts to an invitation to manipulate or frustrate the exercise of the Court's functions under the Trees Act": Respondent's Outline of Submissions, [16].
15. In the alternative, Mrs Hennessy submitted that if on a proper construction of s 14E(2)(a), the Commissioner was required to consider only whether the trees concerned are severely obstructing a view from Mrs Hennessy's house on the day of the hearing, the Commissioner did in fact assess the severity of obstruction of the view as a consequence of the hedge as it was at the hearing. The Commissioner made and relied on his own observations onsite at the hearing: see at [12], [15], [18], [23], [24], [43], [44] and [52]. The Commissioner also relied on a photograph tendered by Mrs Hennessy taken on the day before the hearing (19 July) showing the height of the trees after they had been pruned two days before the hearing (18 July) (Exhibit E). Using the tape measure shown in the photograph, the hedge is about 400mm above the fence. The Commissioner found the most likely state of affairs to be that Mrs Unsworth would allow the hedge to grow to and be maintained at a height 200mm above this height, i.e. 600mm above the fence. Nevertheless, the Commissioner's assessment of the severity of obstruction of the hedge (at [16]-[24]) was expressed to apply equally to the trees at the height they were on the day of the hearing (400mm above the fence) and the height in the most likely state of affairs (600mm above the fence). The impact of the hedge at either height was severe. The Commissioner found that severe impact could only be abated by pruning the hedge to 150mm above the fence: at [44], [52] and [53].
16. In these circumstances, Mrs Hennessy submitted that even if the Commissioner misinterpreted s 14E(2)(a), any such error was not material to his decision because he also found that the trees were severely obstructing views on the day of the hearing: Respondent's Outline of Submissions, [21].
17. I reject Mrs Unsworth's grounds of appeal that the Commissioner erred in construing s 14E(2)(a)(ii) of the Trees Act by not limiting his assessment of the degree of obstruction of a view from Mrs Hennessy's house to the state of the trees comprising the hedge as they existed at the date of the hearing but also had regard to "what is most likely the ongoing state of affairs." Mrs Unsworth's grounds of appeal are based on a misconstruction of s 14E(2)(a) of the Trees Act. On a proper construction, s 14E(2)(a) permits the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees to be over a longer timescale. There are seven reasons.
18. First, the drafter used the present continuous or progressive tense of the verb to obstruct, "are obstructing", in s 14E(2)(a) instead of the present simple tense of "obstruct." The present continuous tense can be used to describe an action or state that is ongoing at the present time. In the case of s 14E(2)(a), the present continuous tense of "are obstructing" is used to refer to the ongoing action or state of the trees concerned obstructing sunlight to a window of a dwelling situated on the applicant's land (subparagraph (i)) or obstructing a view from a dwelling situated on the applicant's land (subparagraph (ii)). This is a present state of affairs - the trees that form the hedge are in a state, including their height, width and canopy density, that causes an obstruction of sunlight or a view.
19. Nevertheless, even though the present continuous tense of a verb is a present tense, it can also be used to describe an action or a state that is going to happen in the future. In the context of s 14E(2)(a), the present continuous tense of "are obstructing" is also used in this sense to refer to an obstruction that is going to happen in the future as a consequence of the trees concerned, either an obstruction of sunlight to a window of a dwelling (subparagraph (i)) or an obstruction of a view from a dwelling (subparagraph (ii)), if an order is not made to remedy, restrain or prevent the obstruction. This refers to a state of affairs that will occur in the future by reason of the present state of the trees.
20. Consider a hedge of deciduous trees of a height, width and canopy size as to obstruct sunlight to a window of a dwelling on adjoining land or a view from a dwelling on adjoining land. Although in mid-winter, when the trees are leafless, the trees might not obstruct sunlight or a view, by mid-summer, when the trees have a dense canopy of leaves, the trees will obstruct sunlight or a view. The obstruction in mid-summer is a consequence of the spring and summer phenology of the trees concerned. The trees "are obstructing" sunlight or a view in mid-summer, because the obstruction happens at that time, but they also "are obstructing" sunlight or a view in mid-winter, because the obstruction of sunlight or a view is going to happen through the course of every year by reason of phenological changes in the trees.
21. The drafter's choice to use the present continuous tense of the verb to obstruct in s 14E(2)(a) should be seen as purposive, the purpose being to address not only an obstruction that happens right now but also an obstruction that is going to happen in the future as a consequence of the trees concerned. This dual purpose could not be achieved if the drafter had used the present simple tense of the verb to obstruct. The present simple tense is used for an action or a state that happens right now. If the drafter had used the present simple tense of the verb to obstruct, s 14E(2)(a) would have been limited to obstructions of sunlight to a window of a dwelling or a view from a dwelling that happen right now, but not such obstructions that are going to happen in the future as a consequence of the trees concerned.
22. Secondly, the subject of the action of obstructing in s 14E(2)(a) is "the trees concerned". Assessment of the degree of obstruction as a consequence of the trees concerned under s 14E(2)(a) requires consideration of the state of the trees at different times. The phrase "the trees concerned" in s 14E(2)(a) refers to the trees in respect of which the Court may "make an order under this Part" (the words in the chapeau of s 14E(2)). The provision in Part 2A of the Trees Act under which an order may be made is s 14D(1). The Court may make an order under 14D(1) to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling on the applicant's land "if the obstruction occurs as a consequence of trees that are the subject of the application concerned." Hence, the phrase in s 14E(2)(a) "the trees concerned" refers to the trees that may be the subject of an order under s 14D(2), which in turn refers to the "trees that are the subject of the application concerned."
23. This interlinkage between s 14E(2) and s 14D(1) requires the Court to consider the state of the trees concerned at two times: first, at the time of making the application to the Court under s 14B and, second, at the time of the Court making an order under s 14D(1).
24. The phrase in s 14D(1) "trees that are the subject of the application concerned" refers to the trees in respect of which an applicant applies to the Court under s 14B for an order to remedy, restrain or prevent a severe obstruction to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the applicant's land. Section 14B uses a conditional to describe when an application in respect of the trees may be made: "if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land." This conditional phrase in s 14B has two parts.
25. The first part, "trees to which this Part applies", are the trees referred to in s 14A(1) of the Trees Act. That subsection provides: "(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)."
26. This describes a state of affairs that must have happened in order for the trees to be trees to which Part 2A of the Trees Act applies: the trees are in a group of two or more trees that are planted to form a hedge and rise to a height of at least 2.5m above existing ground level.
27. In the second part, the obstruction of sunlight to a window of a dwelling situated on the applicant's land or a view from a dwelling situated on the applicant's land must occur "as a consequence of" those trees to which Part 2A applies "being situated on adjoining land". The obstruction is not merely a consequence of the trees concerned, it is a consequence of the trees "being situated on adjoining land." The words "being situated" is the passive voice of the present continuous tense of the verb to situate. As I have earlier noted, the present continuous tense is used to describe an action or a state that is happening at the present moment as well as an action or a state that is going to happen in the future. In s 14B of the Trees Act, the state is the trees being situated on the adjoining land. This state causes the obstruction of sunlight or a view. The state of the trees being situated on adjoining land is continuous - it is happening now and will continue to happen in the future. This continuous state of the trees is the cause of the obstruction of sunlight or a view - the obstruction is happening now and will continue to happen in the future unless an order is made to remove the trees.
28. This interlinkage between s 14D(1) and s 14B requires the Court to consider the state of the trees not just at the times of the making of the application under s 14B and the making of an order under s 14D(1), but also the ongoing state of affairs of both the trees as ongoing subjects of the ongoing action of obstruction of sunlight or a view as a consequence of the trees concerned.
29. In summary, this tracing back from "the trees concerned" in s 14E(2)(a) to "trees that are the subject of the application concerned" in s 14D(1), to "trees to which this Part applies" in s 14B, to the definition of the trees to which the Part applies in s 14A(1), and then to "trees…being situated on adjoining land" in s 14B, reveals a legislative intention to refer to the trees on adjoining land as ongoing subjects of the ongoing action of obstruction of sunlight to windows of, or a view from, a dwelling situated on the applicant's land. The different statutory provisions might on their face refer to the obstruction occurring at different times - s 14B at the time of making an application and s 14D and s 14E at the time of making an order under s 14D - but the use of the present continuous tense of "are obstructing" in s 14E(2) and of "being situated" in s 14B, and the interlinkages between the statutory provisions, signify that the obstruction as a consequence of the trees is ongoing, happening now and going to happen in the future.
30. Thirdly, assessment under s 14E(2)(a) of the degree of obstruction that occurs as a consequence of "the trees concerned" directs attention to the particular trees that are the subject of the application concerned. Trees are heterogenous in their genotype, phenotype, physiology, physiognomy and phenology, amongst other biological features. The obstruction that must be assessed is the obstruction that occurs as a consequence of the particular trees that are the subject of the application.
31. This assessment of the trees concerned must also be undertaken with the recognition that the trees are dynamic living organisms that grow and change over time, both in their overall life cycle from germination to death and in their seasonal life cycle from season to season. Any obstruction of sunlight or a view that occurs as a consequence of the trees will change in degree through the life cycle and seasonal cycle of the trees. Consider again the example I have given of a hedge of deciduous trees. The trees will leaf out in spring, form a dense canopy in summer, release their leaves to fall to the ground in autumn, and be leafless in winter. The obstruction of sunlight or a view as a consequence of deciduous trees will be greatest when the trees are in leaf with a dense canopy and least when the trees are leafless.
32. The assessment of the degree of obstruction of sunlight or a view required by s 14E(2)(a) needs to have regard to this seasonal change in the leaf canopies of deciduous trees. The assessment is not restricted to the condition of the trees at the moment of the hearing of the application under s 14B of the Trees Act. That would produce inconsistent results. A court hearing an application in mid-winter, if the assessment is restricted to the condition of the trees at the date of the hearing, might find that there is not a severe obstruction, as the leafless trees allow sunlight and views through the trees, but a court hearing the same application in mid-summer might find that there is a severe obstruction, as the dense leaf canopies of the trees prevent sunlight or views through the trees. The varying degree of obstruction of sunlight and views that occurs from season to season can properly be said to be as a consequence of "the trees concerned" (the phrase in s 14E(2)(a)), the deciduous trees, "being situated on adjoining land" (the phrase in s 14B). And that varying degree of obstruction can be taken into account when assessing under s 14E(2)(a) whether the trees concerned "are severely obstructing" sunlight or a view.
33. This example illustrates that the words "are severely obstructing" in s 14E(2)(a) need to be construed in the context of the particular trees that are the subject of the application concerned and the fact that the trees concerned are dynamic living organisms which may obstruct sunlight and views differently at different times of the year.
34. Fourthly, s 14F sets out matters the Court is to consider "before determining an application under this Part". Determining an application includes making an order under s 14D(1) to remedy, restrain or prevent a severe obstruction that occurs as a consequence of trees that are the subject of the application concerned. The matters in s 14F include considerations whose assessment cannot be undertaken at only one point in time, whether that be the date an order is made or the date of the hearing of the application, but rather which require assessment over a longer timescale. Paragraphs (o) and (p) are examples.
35. The consideration in paragraph (o) is: "the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost".
36. The consideration in paragraph (p) is: "whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves".
37. Paragraph (o) is relevant to the Court's assessment under s 14E(2)(a)(i) of whether the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. The time of the year during which sunlight is lost, and the amount and number of hours per day of any sunlight lost, is not to be assessed having regard to the time of year that the hearing happens to take place, but over the whole year. The degree of obstruction of sunlight will wax and wane throughout the seasons of the year.
38. Paragraph (p) is relevant to the Court's assessment under s 14E(2)(a)(i) and (ii) of whether the trees concerned are severely obstructing sunlight or a view. The consideration of whether the trees concerned lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves informs the assessment of the degree of obstruction that occurs as a consequence of the trees. That assessment is made having regard to the state of the trees throughout all of the seasons of the year, not just the state of the trees at the time the hearing happens to take place. This matter in paragraph (p) is an express recognition of the point I have made earlier that the assessment of the degree of obstruction must have regard to the particular trees that are the subject of the application, including their phenology.
39. Fifthly, the precondition in s 14E(2), that the Court form the required opinions of satisfaction regarding the matters in paragraphs (a) and (b), is to the Court making an order under s 14D(1). The orders the Court may make under s 14D(1) are threefold: to remedy, restrain or prevent the severe obstruction. An applicant may make an application under s 14B seeking any one or more of these three orders. The inclusion in s 14B and s 14D(1) of an order to prevent a severe obstruction in addition to orders to remedy or restrain a severe obstruction is important. To prevent something is to keep something from happening. In the context of s 14B and s 14D(1), it is to prevent a severe obstruction of sunlight or a view from occurring as a consequence of the trees concerned. In contrast, in order to be able to remedy or restrain a severe obstruction, the obstruction must have already occurred and be occurring. But an order to remedy or restrain a severe obstruction will be ineffective for an obstruction that is yet to occur. This is the purpose of providing for an order to prevent. The applicant can seek under s 14B and the Court can make under s 14D(1) an order to prevent a severe obstruction occurring as a consequence of the trees concerned.
40. The words "are severely obstructing" in s 14E(2)(a) need to be construed in this context that an applicant can seek and the Court can make an order to prevent a severe obstruction of sunlight or a view occurring as a consequence of the trees concerned. The Court's assessment of whether the trees concerned "are severely obstructing" can have regard to not only any obstruction that has occurred or is occurring but also any obstruction that will occur. The assessment of the severity of the obstruction under s 14E(2)(a) will vary according to when the obstruction occurs: backward-looking for obstructions that have occurred, present-looking for obstructions that are occurring and forward-looking for obstructions that are yet to occur. So too, the orders the Court may make will vary depending on when the severe obstruction occurs: orders to remedy or restrain a obstruction that has occurred and is occurring, and an order to prevent a obstruction that is yet to occur.
41. Sixthly, the assessment under s 14E(2)(a) of the degree of obstruction as a consequence of the trees concerned needs to be distinguished from the time at which that assessment is required to be undertaken. Section 14E(2) fixes the time of assessment by reference to when the Court makes an order under Part 2A: "The Court must not make an order under this Part unless it is satisfied…" of the matters in paragraphs (a) and (b). The formation of the opinion of satisfaction about the matters in paragraphs (a) and (b) of s 14E(2) is a precondition to the Court being able to make an order under s 14D(1) of the Trees Act. The time at which the Court makes an order under s 14D(1) may or may not coincide with the date of the hearing. It will be when the Court delivers its judgment ex tempore; it will not be when the Court reserves its judgment. The latter was the situation in this case: the case was heard on 20 July 2023 but judgment was not delivered until 20 December 2023.
42. Mrs Unsworth submitted that, although legally the Court must form the required opinion of satisfaction at the time of making an order under s 14D(1), in practice the Court will form that opinion on the basis of the evidence adduced at the hearing. That evidence will describe the state of the trees at the time of the hearing. The Court is entitled to assume that there has been no material change in circumstances, including the state of the trees and the degree of obstruction as a consequence of the trees, unless it is otherwise advised by a party: Rodny v Weisbord [2024] NSWCA 183 at [60] and [63]. Mrs Unsworth argued that the Court must assess the degree of obstruction under s 14E(2)(a) having regard only to the evidence of the state of the trees concerned at the time of the hearing, unless otherwise advised.
43. This argument, however, conflates the time at which the assessment of the degree of obstruction must be undertaken with the actual assessment of the degree of obstruction. It may be accepted that s 14E(2) fixes the time of assessment as being when the Court makes an order under s 14D(1). But that does not demand that the assessment is confined to the state of the trees and the degree of obstruction as a consequence of those trees at that precise time. For reasons I have explained, the question of whether the trees concerned are severely obstructing sunlight or a view can be answered by reference to the trees concerned and their obstruction of sunlight or a view over a longer time scale. Based on this longer assessment, the Court determines whether it is satisfied of the matters in s 14E(2)(a) and (b) before it makes an order under s 14D(1).
44. Seventhly, Mrs Unsworth's construction of s 14E(2)(a) as requiring the assessment of the degree of obstruction as a consequence of the trees concerned to have regard only to the state of the trees on the day of the hearing is inconsistent with the statutory purpose of providing a simple and practical scheme for the resolution of disputes between neighbours concerning trees.
45. One inconsistency is that the statutory scheme could be gamed by the neighbour on whose land the trees are situated, such as by the neighbour pruning the trees that are the subject of the application concerned just before the hearing, so as to alter the state of the trees that is to be assessed. This would cause the Court's assessment of the degree of obstruction as a consequence of the trees concerned to vary depending on whether the respondent chooses and is able to prune the trees the subject of the application concerned before the hearing takes place.
46. A second is that the assessment becomes dependent on a factor outside of either neighbours' control - the date on which the Court, in its discretion, fixes the hearing of the application. The date of the hearing of the application could materially affect the Court's assessment of the degree of obstruction as a consequence of the trees concerned. As I have explained for deciduous trees, a hearing fixed in mid-winter rather than mid-summer could materially change the Court's assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned. Even for non-deciduous trees, the degree of obstruction as a consequence of the trees concerned is a product of the phenology of the trees. Plant phenology is the response of plants to variations in climate and environmental conditions such as light, temperature and precipitation. Variations may occur in the long-term or short-term. Long-term changes in the climate system may affect the growing seasons, changing the timing at which leaf growth, flowering and fruiting of plants occurs. Short-term variations in environmental conditions, such as high temperatures and low precipitation, may seriously affect the growth, productivity and health of the plants. A hearing fixed at a time of particular variations in environmental conditions that affect the trees' growth, productivity and health, rather than at another time, may influence the Court's assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned.
47. A third is that, depending on the differences in the relative topography and heights of the trees and the dwelling on the adjoining properties, the Court's assessment of the degree of obstruction of sunlight as a consequence of the trees concerned will vary from mid-winter to mid-summer because of the difference in the angle of the sun. A hearing fixed in mid-winter rather than mid-summer may affect the Court's assessment of the degree of obstruction of sunlight as a consequence of the trees concerned.
48. Mrs Unsworth's construction of the words "are severely obstructing" in s 14E(2)(a), which would give rise to such inconsistencies with the statutory purpose of providing a simple and practical scheme for the resolution of disputes between neighbours concerning trees, is not to be preferred over a construction that does not give rise to such inconsistencies.
49. For these seven reasons, s 14E(2)(a) of the Trees Act is not to be construed as demanding that the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned be restricted to the state of the trees as at the date of the hearing. The assessment can have regard to the state of the trees over a longer time scale. To the extent Mrs Unsworth's grounds of appeal contended that the Commissioner erred on a question of law by not construing s 14E(2)(a) as so restricting the assessment of the degree of obstruction, I reject those grounds. The Commissioner did not misinterpret s 14E(2)(a)(ii) by not restricting his assessment of the degree of obstruction of the view from Mrs Hennessy's dwelling as a consequence of the trees to the state of the trees on the day of the hearing. The Commissioner could properly assess the degree of obstruction of the view as a consequence of the trees having regard to not only the state of the trees and the obstruction as occurring on the day of the hearing, but also the state of the trees and the obstruction as a consequence of the trees that are going to occur.
50. That was the assessment the Commissioner said he was undertaking in [15] of the judgment: "Based on this, rather than limit my assessment of the view obstruction to the day of the hearing, I consider what is most likely the ongoing state of affairs here: a hedge that is approximately 200 mm taller than the trees' height on the day of the hearing."
51. The Commissioner stated that this finding of what is the most likely state of affairs was based on two facts. First, at the time of Mrs Hennessy making the application the trees had grown to a height of 600mm above the fence, 200mm taller than the trees' height on the day of the hearing. This would have been the height of the trees on which the Commissioner would have based his assessment of view obstruction had the trees not been pruned two days before the hearing. Second, Mrs Unsworth had stated at the hearing that "it is her intention to maintain the trees at a height 200mm above the trees' height observed at the hearing.": at [15]. The trees would return to being 600mm above the fence.
52. The Commissioner's findings of the state of the trees and the obstruction as a consequence of the trees in "the ongoing state of affairs" were based on these two facts. The state of the trees at the time of Mrs Hennessy making the application to the Court under s 14B was that they formed a dense hedge, 600mm above the fence, which the Commissioner found entirely obstructed the view from Mrs Hennessy's west-facing windows, so that only the sky remained visible above the trees: at [16], [22], [23] and [49]. That state of affairs continued until the trees were pruned two days before the hearing to a height of 400mm above the fence. The trees at that height still severely obstructed the view from Mrs Hennessy's west-facing windows: at [18], [22]-[24]. The Commissioner found that the state of affairs that occurred before this pruning would again occur because Mrs Unsworth stated she intended to allow the trees to grow back to and be maintained at the previous height of 600mm above the fence: at [15]. The severity of the obstruction would increase to what it was at the time of making the application as Mrs Unsworth allows the trees to grow back to their former height of 600mm above the fence: [23]. The severity of the obstruction would only be reduced by pruning the trees to a height of 150mm above the fence: at [51], [53].
53. The ongoing state of affairs found by the Commissioner, therefore, was of a past state of affairs going into a future state of affairs. The past state of affairs was of a group of trees forming a hedge, which were at the time of making the application and continuing up to two days before the hearing, of a height 600mm above the fence and severely obstructing a view from Mrs Hennessy's house. The future state of affairs was of the same group of trees forming a hedge, which will again be of a height 600mm above the fence and severely obstructing a view from Mrs Hennessy's house. There would be an interregnum between these two periods, after the trees were pruned and before they grow back to their former height, but this gap was found by the Commissioner to be insufficient to displace this finding of "the ongoing state of affairs".
54. These factual findings and conclusions of the Commissioner are not open to challenge on an appeal restricted to errors on questions of law. The Commissioner's assessment of the degree of obstruction as a consequence of the trees was based on his factual findings of the ongoing state of affairs. In these circumstances, the Commissioner's assessment of the degree of view obstruction as a consequence of the trees did not involve error on a question of law. I reject these grounds of appeal.
55. As I have found that the Commissioner did not misinterpret s 14E(2)(a), it is not necessary to decide Mrs Hennessy's alternative submission that any error in interpreting or applying s 14E(2)(a) was not material to the Commissioner's decision as he also found that the trees were severely obstructing a view from Mrs Hennessy's house on the day of the hearing. The Commissioner's finding that the hedge needed to be pruned to 150mm above the fence, which is below both the height of the hedge at the date of the hearing (400mm above the fence) and the height of the hedge in the most likely state of affairs (600mm above the fence), to abate the severe obstruction, would support this submission, but it is unnecessary to decide this.

The erroneous order issue

1. Mrs Unsworth argued that the Commissioner erred by not limiting the order he made under s 14D(1) to prune the trees of the hedge to only those trees that are severely obstructing the view from Mrs Hennessy's house.
2. The application identified five windows, labelled W1 to W5, in Mrs Hennessy's house, the view from which was claimed to be obstructed by trees of the hedge. The hedge itself was identified as having 20 trees (approximately), labelled T1 in the north to T20 in the south. Windows W1 to W5 were identified in the diagram as being located adjacent to the southern section of the hedge up to around halfway along the length of the hedge.
3. The Commissioner found that Mrs Unsworth's lilly pilly hedge severely obstructs a view from Mrs Hennessy's house: at [24] and [52]. That finding was not specific to the view from any particular windows of Mrs Hennessy's house. Section 14E(2)(a)(ii) only required the Commissioner to be satisfied that the trees concerned are severely obstructing a view from a dwelling situated on Mrs Hennessy's land. Nevertheless, the Commissioner identified the impact to be greater for windows W3 and W4, which "are tall double windows that maximise the potential to enjoy the western view from the living room", than for windows W1 and W2, which "are smaller windows with deep sills - the view is less accessible here than elsewhere": at [23].
4. Mrs Unsworth argued that the Commissioner did not identify which particular trees of the hedge obstruct the view from Mrs Hennessy's house. The Commissioner's findings that the western view from windows W3 and W4, and to a lesser extent from windows W1 and W2, is severely obstructed would suggest that the trees obstructing the view are those adjacent to those windows. These trees are in the southern section of the hedge. The Commissioner might be inferred to be referring to this section of the hedge when he said in [26] that: "The section of the hedge that obstructs [the] view is less than 2 metres from the applicant's family room windows." This statement might suggest that the trees in the northern section of the hedge, adjacent to an outdoor living area and a studio to the north of the house's family room windows, might not obstruct the view from Mrs Hennessy's house. In this regard, the Commissioner observed that "[n]ot all trees in the hedge affect the applicant equally": at [50]. Nevertheless, Mrs Unsworth noted that the Commissioner made no finding about the obstruction, if any, as a consequence of the trees in the northern section of the hedge: Appellant's Outline of Submissions in Reply, [11].
5. Mrs Unsworth submitted that, absent a finding that the trees in the northern section of the hedge do severely obstruct a view from Mrs Hennessy's house, the Commissioner had no basis to order the pruning of trees that were not found to cause a severe obstruction: Appellant's Outline of Submission in Reply, [10]. Mrs Unsworth argued that the Court's power under s 14D(1) is limited to making orders to remedy, restrain or prevent the severe obstruction of sunlight or a view "if the obstruction occurs as a consequence of trees that are the subject of the application concerned." Section 14D(1) only permits a remedial response to the obstruction that has been found to exist: Appellant's Outline of Submissions, [27]. That is to say, the order needs to be tailored to remedying, restraining or preventing the obstruction as a consequence of particular trees. If certain trees of the hedge do not cause a severe obstruction, the Court has no power to make an order in relation to those trees.
6. Mrs Unsworth submitted that the two reasons given by the Commissioner for making an order in relation to all of the trees in the hedge, regardless of the fact that not all trees affect Mrs Hennessy equally, namely "aesthetic reasons" (in [50]) and what "the respondent has done in the past" (in [51]), do not enliven the power in s 14D(1) to order the pruning of all of the trees in the hedge. Pruning for either of those reasons does not remedy, restrain or prevent a severe obstruction that occurs as a consequence of the trees: Appellant's Outline of Submissions, [35], [40].
7. Mrs Unsworth challenged the Commissioner's order to prune the whole of the hedge as going well beyond a remedial response to remove the cause of the severe obstruction: "It requires the pruning of long sections of hedge not found to be causing any form of obstruction to view. That was not because of any notion that in order to remove the severe obstruction, it was practically necessary to impose such broader obligations. The justification was only an assertion that it "seems appropriate" to order that the entire hedge be pruned 'for aesthetic reasons', given that in the past it had been maintained at a uniform height.": Appellant's Outline of Submissions, [38].
8. Mrs Hennessy contested that the power in s 14D(1) to make orders is as confined as Mrs Unsworth contended. Legally, Mrs Hennessy contended that the trees in respect of which orders under s 14D(1) can be made are the line of trees comprising the hedge that the Commissioner found to satisfy the statutory test of severe obstruction. That finding that the line of trees comprising the hedge severely obstructs a view from Mrs Hennessy's house enlivened the power to make such remedial orders in respect of the hedge as the Commissioner regarded appropriate: Respondent's Outline of Submissions, [28].
9. Factually, Mrs Hennessy submitted that Mrs Unsworth has not specified the part or parts of the hedge that she says are not causing a severe obstruction of a view from Mrs Hennessy's house and therefore should not have been the subject of the Commissioner's order: Respondent's Outline of Submissions, [27]. Mrs Hennessy submitted that the Commissioner's finding was that "the hedge" and "the respondent's lilly pilly hedge" severely obstructs a view from Mrs Hennessy's house: at [24] and [52]. This was a finding in relation to the group of trees that form the hedge, and was not limited to only some part or parts of the hedge. The Commissioner accepted that not all trees in the hedge affect Mrs Hennessy equally: at [50]. But this is not a finding that that some trees are not severely obstructing a view from Mrs Hennessy's house.
10. I reject Mrs Unsworth's ground of appeal that the Commissioner misinterpreted or misapplied s 14D(1) when ordering the pruning of all of the trees in the hedge. Legally, the Court may make orders under s 14D(1) in relation to all of the trees in the group of trees that form the hedge, regardless of whether every tree in the group of trees is found to severely obstruct sunlight or a view. The condition to the making of an order under s 14D(1) is that the obstruction occurs as a consequence of the "trees that are the subject of the application concerned." These are the trees in respect of which the application seeks an order to remedy, restrain or prevent a severe obstruction of sunlight or a view, being trees to which Part 2A applies. Part 2A applies to groups of two or more trees that are planted so as to form a hedge and that rise to a height of at least 2.5m above existing ground level.
11. Hence, the trees in respect of which an order may be made under s 14D(1) are all of the trees in the group of trees that are the subject of the application. The nexus required by s 14D(1) is between the obstruction and the group of trees that form the hedge, not with the individual trees within that group. The nexus will be established if any one or more of the trees in the group of trees obstructs or obstruct the view; it is not necessary that all of the trees in the group of trees obstruct the view. If one or more of the trees in the group of trees obstructs or obstruct the view, the obstruction can be said to occur as a consequence of the group of trees that are the subject of the application.
12. In this case, the trees that are the subject of Mrs Hennessy's application are all of the trees (approximately 20) that form the hedge along the common boundary between Mrs Unsworth's property and Mrs Hennessy's property. The Commissioner found that trees in the group of trees that form the hedge severely obstruct the view from Mrs Hennessy's house. The trees obstructing the view certainly would include those adjacent to windows W3 and W4, and likely windows W1 and W2, but may include other trees. The Commissioner's statement that "[n]ot all trees in the hedge affect the applicant equally" (in [50]) is capable of being read as a finding that all trees affect the view from Mrs Hennessy's house to some extent, but some trees affect the view to a greater extent.
13. But even if the Commissioner were to have found that only some of the trees in the group of trees that form the hedge severely obstruct the view from Mrs Hennessy's house, this is sufficient to establish the nexus of consequence in s 14D(1) between the severe obstruction and the trees that are the subject of the application concerned. The Commissioner had power to make an order under s 14D(1) to prune all of the trees in the group of trees that form the hedge.
14. That the power in s 14D(1) extends to making an order in respect of all trees in the group of trees that form the hedge, regardless of whether every one of those trees severely obstructs sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the applicant's land, is supported by the specification in s 14D(2) of the types of orders the Court may make.
15. The orders specified in s 14D(2) as being orders the Court may make are stated to be "without limiting the powers of the Court to make orders under subsection (1)." The order in paragraph (c) to "require the taking of specified action to maintain a tree or trees at a certain height, width or shape" and the order in paragraph (d) to "require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree", are not stated to be limited to only the particular trees in the group of trees that form the hedge which severely obstruct sunlight or a view, or to only remedying, restraining or preventing the parts of those trees which cause a severe obstruction of sunlight or a view. An order to remove trees and replace them with trees of a different species clearly shows the width of the powers to make orders under s 14D(1).
16. In any event, the Commissioner's finding was that it was the group of trees that form the hedge which severely obstructs a view from Mrs Hennessy's house: at [24] and [52]. The Commissioner did not make a finding that some trees do and other trees do not severely obstruct the view from Mrs Hennessy's house. In these circumstances, Mrs Unsworth has not established that the Commissioner erred in his exercise of the power in s 14D(1) to order the pruning of all of the trees that form the hedge, even if s 14D(1) were to be interpreted narrowly as Mrs Unsworth contended.
17. I reject the ground of appeal concerning the scope of the order under s 14D(1).

The procedural fairness issue

1. Mrs Unsworth advanced the procedural fairness ground in the alternative to the grounds that the Commissioner misinterpreted and misapplied s 14E(2)(a). If as a matter of law it was open to the Commissioner to assess the degree of obstruction of a view from Mrs Hennessy's house having regard to the most likely ongoing state of affairs of the trees, Mrs Unsworth argued that the Commissioner denied her procedural fairness by not identifying, in advance of or at the hearing, that this was to be the framework of analysis, so that she could adduce evidence and advance submissions accordingly.
2. Mrs Hennessy contested that there was any denial of procedural fairness. First, the Commissioner's consideration of what is most likely to be the ongoing state of affairs only came about because of Mrs Unsworth's conduct of pruning the trees the subject of the application before the hearing, including only two days before the hearing, and her statement of intention to allow the pruned trees to grow back to their previous height. The Commissioner's assessment of the severity of the obstruction as a consequence of the trees needed to have regard to this conduct and statement of intention. The Commissioner did so by considering what is most likely the ongoing state of affairs of the trees. This finding that the trees would grow to and be maintained at a height of 200mm above the height of the trees at the time of the hearing is a finding of fact. There was no denial of procedural fairness in making this finding of fact in response to Mrs Unsworth's conduct and statement of intention.
3. Second, there could be no denial of procedural fairness by the Commissioner correctly interpreting and applying s 14E(2)(a). The assessment under s 14E(2)(a) of whether the trees are severely obstructing a view from Mrs Hennessy's house may have regard to what is most likely the ongoing state of affairs of the trees. The Commissioner was not obliged to advise Mrs Unsworth of what is the correct interpretation of s 14E(2)(a) or that he would apply that correct interpretation in his assessment of the degree of obstruction of a view from Mrs Hennessy's house.
4. Third, Mrs Unsworth had an opportunity to present evidence and make submissions based on the trees being at a height greater than they were on the day of the hearing. Mrs Hennessy's application included photographs of the trees at the height they were before Mrs Unsworth pruned them, which was the height Mrs Unsworth said she intended to maintain the trees after they grow back from her pruning. Mrs Unsworth tendered her own photographs of the hedge from her property when they were higher. Mrs Unsworth's planner, Ms Sneyd, included photographs of the hedge obstructing the view from Mrs Hennessy's house on 5 July 2023 after some trimming but before the trimming two days before the hearing. Mrs Unsworth's barrister made submissions on the obstruction of the view from Mrs Hennessy's house on the basis of the hedge at its height on the day of the hearing, as the Commissioner was able to observe, and if "the hedge were to grow an additional 100 to 200mm": T336 lines 11-21. Mrs Hennessy submitted that Mrs Unsworth "had, and took, the opportunity to address the Commissioner on the application of the statute to the hedge in its higher form": Respondent's Outline of Submissions, [25].
5. I reject Mrs Unsworth's ground that she was denied procedural fairness, for the reasons advanced by Mrs Hennessy. If, on a proper construction of s 14E(2)(a), the Commissioner could have regard to the likely ongoing state of affairs of the trees in assessing whether the trees are severely obstructing a view from Mrs Hennessy's house, the Commissioner was not obliged to give notice to the parties of the correct interpretation of s 14E(2)(a) or the application of that interpretation to the facts that he might find on the evidence before the Court. The Commissioner's finding of the likely ongoing state of affairs was based on the evidence of the height of the trees at the time Mrs Hennessy made the application and before Mrs Unsworth pruned the trees, the observed height of the trees at the hearing after Mrs Unsworth had pruned the trees, and Mrs Unsworth's stated intention to allow the trees to grow 200mm higher than their height at the hearing, which would be their former height at the time of making of the application. This evidence was available to and in part advanced by Mrs Unsworth. She had the opportunity to, and did, make submissions on the evidence of whether the trees at their height at the hearing or 200mm higher severely obstructed a view from Mrs Hennessy's house. In these circumstances, the Commissioner did not deny Mrs Unsworth procedural fairness by assessing the severity of obstruction of the view from Mrs Hennessy's house on the basis of the likely ongoing state of affairs of the trees.

Conclusion and orders

1. Mrs Unsworth has not established that the Commissioner erred on a question of law in any of the ways raised in the grounds of appeal. The appeal should be dismissed, with costs.
2. The Court orders: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal.

Amendments 22 August 2024 - Paragraph [86]: "s 14D(2)(a)" amended to "s 14E(2)(a)" 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: 22 August 2024

"(2) The Court must not make an order under this Part unless it is satisfied that:

(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".

1. Mrs Unsworth submitted that the use of the present tense "are obstructing" directs attention to a presently existing state of affairs. This state of affairs is the condition of the trees, including their height, and the obstruction of sunlight or a view that the trees cause, on the day of the hearing. Mrs Unsworth cited a Commissioner's decision, Tooth v McCombie [2011] NSWLEC 1004 at [14], as supporting this construction of s 14E(2)(a)(ii).
2. Mrs Unsworth submitted the Commissioner's construction of s 14E(2)(a)(ii) in [15], following his approach in Steber v Job [2019] NSWLEC 1308 at [35]- [41], is inconsistent with the use of the present tense "are obstructing". Mrs Unsworth submitted:

"It does considerable violence to the text of the Act to conclude that trees which are not severely obstructing a view from a dwelling, but would severely obstruct a view if they reached a different state in the future, can be described as trees that 'are severely obstructing' a view": Appellant's Outline of Submissions, [14].

1. Mrs Unsworth submitted that the Commissioner's construction would require:

"the creation of a series of alternative concepts to make the Act operate in a different context. It requires some notion of what is likely to be the future condition of the trees, which in turn requires some notion of how that should be assessed and who bears the onus": Appellant's Outline of Submissions, [17].

1. The Commissioner's test requires a finding of "what is most likely the ongoing state of affairs" and assessing the degree of obstruction of a view as a consequence of that ongoing state of affairs. Mrs Unsworth submitted there is no legislative support for this test: Appellant's Outline of Submissions, [17].
2. Mrs Unsworth submitted that:

"The approach to the Trees Act adopted by the Commissioner in the present case (and in Steber) requires the Court to make an assessment of both the proximity in time to the hearing of the severe obstruction (ie to ask whether the obstruction was 'recent') and the future probability of the severe obstruction recurring (ie to ask whether it is 'likely' to continue or recur, and with what frequency). Neither of those requirements emerge from the words actually used in s 14E of the Trees Act. Such an interpretation is liable to generate inconsistent and capricious outcomes": Appellant's Outline of Submissions, [18].

1. Mrs Unsworth submitted that a construction confining the assessment of the degree of obstruction to the present condition of the trees, and not the ongoing state of affairs, accords with the principle of legality:

"Here there is no ambiguity in the Trees Act, given the clear language of s 14D and the absence of any textual or contextual indication that the legislature intended to deal with obstructions that might have existed in the past or might exist in the future if trees assume a certain form. But even if any ambiguity were to be perceived, that ambiguity must be resolved in favour of the protection of the fundamental right of a landowner to enjoy their own property. There is no textual basis, let alone clear and unambiguous words, extending the Trees Act to trees that have in the past caused, or that might in the future cause, a severe obstruction": Appellant's Outline of Submissions, [20].

1. Mrs Unsworth submitted that the Commissioner's misinterpretation of s 14E(2)(a) was material. The Commissioner applied his interpretation, based on his prior approach in Steber v Job, to assess the view obstruction having regard to what is most likely the ongoing state of affairs of the trees. That is what the Commissioner said he did (at [15]) and what he did (in [16]-[24]).
2. Mrs Hennessy contested Mrs Unsworth's construction of s 14E(2)(a)(ii) of the Trees Act. The drafter selected the present progressive tense of the verb to obstruct, "are obstructing", instead of the present simple tense, "obstruct". The present progressive tense is used for an ongoing action or condition in the present and also to describe an action or condition that is going to happen in the future. The present simple tense is used for an action or a condition happening right now or a habitual action or occurrence. The grammatical choice of the drafter supports the Commissioner's construction of s 14E(2)(a)(ii) as referring to "what is most likely the ongoing state of affairs."
3. Mrs Hennessy submitted that this construction of "are severely obstructing" in s 14E(2)(a)(ii) does not change the statutory test. The question of whether trees "are severely obstructing" a view is answered having regard to the condition of the trees concerned over a longer timescale than the single day of the hearing. To restrict the assessment of the degree of obstruction of a view to only the day of the hearing would be to "import unnecessary words into the statute that are inconsistent with its purpose": Respondent's Outline of Submissions, [13].
4. Mrs Hennessy challenged the arbitrariness of construing "are severely obstructing" as requiring an assessment of the degree of obstruction only on the day of the hearing, whenever that hearing might be fixed by the Court:

"The artificiality of the Appellant's proposed construction can also be shown by asking why, if (contrary to the Commissioner's approach and to the Respondent's contention) the present tense in section 14E(2)(a)(ii) is confined to a single day, that day is not (i) the day that the application was filed; or (ii) the day the orders are made. As to (i), it is the usual position that legal proceedings are determined by application of the law that applies on the day the proceedings are commenced. As to (ii), making orders based on satisfaction of a statutory criterion expressed in the present tense necessarily involves satisfaction of that criterion on the day the orders are made. However, the Appellant does not advance either of those interpretations, instead suggesting that the provision be read down to refer to a single day able to be identified only after the usual steps of case preparation have occurred (including, here, the parties' evidence of the hedge and its obstruction of a view) and it is convenient to the Court to list the matter for hearing. That approach should be rejected": Respondent's Outline of Submissions, [14].

1. Mrs Hennessy submitted that the principle of legality does not assist Mrs Unsworth in "her overly narrow interpretation of the statute." Mrs Hennessy submitted that the principle of legality has "limited application to the interpretation of legislation that has amongst its objects the interference with the particular right in respect of which the principle is sought to be invoked", citing Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39 at [314]. As stated in Lee, "[t]he simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'." Here, the Trees Act intended to interfere with property rights: Respondent's Outline of Submissions, [15].
2. Mrs Hennessy submitted that construing "are severely obstructing" as enabling an assessment of the degree of obstruction over a longer time scale than just the single day of the hearing is consistent with the statutory purpose:

"In circumstances where a neighbour has pruned a hedge shortly before a hearing, in this case intentionally so, it is not the case that there is neither need nor basis for the Court to intervene, contrary to AOS [22]. A single pruning before the hearing may or may not provide temporary resolution of the dispute. The Court's powers under section 14D enable orders to be made for a hedge to be trimmed on a periodic basis to restrain or prevent the obstruction of a view and to maintain a tree at a particular height. As recognised in Steber at [43], some trees (in that case, bamboo, and in this case lilly pillies) grow quickly with the result that despite pruning shortly before the hearing the obstruction will occur again soon. Considering a longer timescale than the day of the hearing when determining the question 'are severely obstructing' is consistent with the statutory objective of providing a process for resolving disputes between neighbours about trees. If the litigation can be frustrated by pruning shortly before a hearing that temporarily removes or reduces the obstruction, the legislative purpose is not served and the dispute between the neighbours about the trees has not been resolved. The Court would not adopt an interpretation of the statute that amounts to an invitation to manipulate or frustrate the exercise of the Court's functions under the Trees Act": Respondent's Outline of Submissions, [16].

1. In the alternative, Mrs Hennessy submitted that if on a proper construction of s 14E(2)(a), the Commissioner was required to consider only whether the trees concerned are severely obstructing a view from Mrs Hennessy's house on the day of the hearing, the Commissioner did in fact assess the severity of obstruction of the view as a consequence of the hedge as it was at the hearing. The Commissioner made and relied on his own observations onsite at the hearing: see at [12], [15], [18], [23], [24], [43], [44] and [52]. The Commissioner also relied on a photograph tendered by Mrs Hennessy taken on the day before the hearing (19 July) showing the height of the trees after they had been pruned two days before the hearing (18 July) (Exhibit E). Using the tape measure shown in the photograph, the hedge is about 400mm above the fence. The Commissioner found the most likely state of affairs to be that Mrs Unsworth would allow the hedge to grow to and be maintained at a height 200mm above this height, i.e. 600mm above the fence. Nevertheless, the Commissioner's assessment of the severity of obstruction of the hedge (at [16]-[24]) was expressed to apply equally to the trees at the height they were on the day of the hearing (400mm above the fence) and the height in the most likely state of affairs (600mm above the fence). The impact of the hedge at either height was severe. The Commissioner found that severe impact could only be abated by pruning the hedge to 150mm above the fence: at [44], [52] and [53].
2. In these circumstances, Mrs Hennessy submitted that even if the Commissioner misinterpreted s 14E(2)(a), any such error was not material to his decision because he also found that the trees were severely obstructing views on the day of the hearing: Respondent's Outline of Submissions, [21].
3. I reject Mrs Unsworth's grounds of appeal that the Commissioner erred in construing s 14E(2)(a)(ii) of the Trees Act by not limiting his assessment of the degree of obstruction of a view from Mrs Hennessy's house to the state of the trees comprising the hedge as they existed at the date of the hearing but also had regard to "what is most likely the ongoing state of affairs." Mrs Unsworth's grounds of appeal are based on a misconstruction of s 14E(2)(a) of the Trees Act. On a proper construction, s 14E(2)(a) permits the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees to be over a longer timescale. There are seven reasons.
4. First, the drafter used the present continuous or progressive tense of the verb to obstruct, "are obstructing", in s 14E(2)(a) instead of the present simple tense of "obstruct." The present continuous tense can be used to describe an action or state that is ongoing at the present time. In the case of s 14E(2)(a), the present continuous tense of "are obstructing" is used to refer to the ongoing action or state of the trees concerned obstructing sunlight to a window of a dwelling situated on the applicant's land (subparagraph (i)) or obstructing a view from a dwelling situated on the applicant's land (subparagraph (ii)). This is a present state of affairs - the trees that form the hedge are in a state, including their height, width and canopy density, that causes an obstruction of sunlight or a view.
5. Nevertheless, even though the present continuous tense of a verb is a present tense, it can also be used to describe an action or a state that is going to happen in the future. In the context of s 14E(2)(a), the present continuous tense of "are obstructing" is also used in this sense to refer to an obstruction that is going to happen in the future as a consequence of the trees concerned, either an obstruction of sunlight to a window of a dwelling (subparagraph (i)) or an obstruction of a view from a dwelling (subparagraph (ii)), if an order is not made to remedy, restrain or prevent the obstruction. This refers to a state of affairs that will occur in the future by reason of the present state of the trees.
6. Consider a hedge of deciduous trees of a height, width and canopy size as to obstruct sunlight to a window of a dwelling on adjoining land or a view from a dwelling on adjoining land. Although in mid-winter, when the trees are leafless, the trees might not obstruct sunlight or a view, by mid-summer, when the trees have a dense canopy of leaves, the trees will obstruct sunlight or a view. The obstruction in mid-summer is a consequence of the spring and summer phenology of the trees concerned. The trees "are obstructing" sunlight or a view in mid-summer, because the obstruction happens at that time, but they also "are obstructing" sunlight or a view in mid-winter, because the obstruction of sunlight or a view is going to happen through the course of every year by reason of phenological changes in the trees.
7. The drafter's choice to use the present continuous tense of the verb to obstruct in s 14E(2)(a) should be seen as purposive, the purpose being to address not only an obstruction that happens right now but also an obstruction that is going to happen in the future as a consequence of the trees concerned. This dual purpose could not be achieved if the drafter had used the present simple tense of the verb to obstruct. The present simple tense is used for an action or a state that happens right now. If the drafter had used the present simple tense of the verb to obstruct, s 14E(2)(a) would have been limited to obstructions of sunlight to a window of a dwelling or a view from a dwelling that happen right now, but not such obstructions that are going to happen in the future as a consequence of the trees concerned.
8. Secondly, the subject of the action of obstructing in s 14E(2)(a) is "the trees concerned". Assessment of the degree of obstruction as a consequence of the trees concerned under s 14E(2)(a) requires consideration of the state of the trees at different times. The phrase "the trees concerned" in s 14E(2)(a) refers to the trees in respect of which the Court may "make an order under this Part" (the words in the chapeau of s 14E(2)). The provision in Part 2A of the Trees Act under which an order may be made is s 14D(1). The Court may make an order under 14D(1) to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling on the applicant's land "if the obstruction occurs as a consequence of trees that are the subject of the application concerned." Hence, the phrase in s 14E(2)(a) "the trees concerned" refers to the trees that may be the subject of an order under s 14D(2), which in turn refers to the "trees that are the subject of the application concerned."
9. This interlinkage between s 14E(2) and s 14D(1) requires the Court to consider the state of the trees concerned at two times: first, at the time of making the application to the Court under s 14B and, second, at the time of the Court making an order under s 14D(1).
10. The phrase in s 14D(1) "trees that are the subject of the application concerned" refers to the trees in respect of which an applicant applies to the Court under s 14B for an order to remedy, restrain or prevent a severe obstruction to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the applicant's land. Section 14B uses a conditional to describe when an application in respect of the trees may be made: "if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land." This conditional phrase in s 14B has two parts.
11. The first part, "trees to which this Part applies", are the trees referred to in s 14A(1) of the Trees Act. That subsection provides:

"(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)."

1. This describes a state of affairs that must have happened in order for the trees to be trees to which Part 2A of the Trees Act applies: the trees are in a group of two or more trees that are planted to form a hedge and rise to a height of at least 2.5m above existing ground level.
2. In the second part, the obstruction of sunlight to a window of a dwelling situated on the applicant's land or a view from a dwelling situated on the applicant's land must occur "as a consequence of" those trees to which Part 2A applies "being situated on adjoining land". The obstruction is not merely a consequence of the trees concerned, it is a consequence of the trees "being situated on adjoining land." The words "being situated" is the passive voice of the present continuous tense of the verb to situate. As I have earlier noted, the present continuous tense is used to describe an action or a state that is happening at the present moment as well as an action or a state that is going to happen in the future. In s 14B of the Trees Act, the state is the trees being situated on the adjoining land. This state causes the obstruction of sunlight or a view. The state of the trees being situated on adjoining land is continuous - it is happening now and will continue to happen in the future. This continuous state of the trees is the cause of the obstruction of sunlight or a view - the obstruction is happening now and will continue to happen in the future unless an order is made to remove the trees.
3. This interlinkage between s 14D(1) and s 14B requires the Court to consider the state of the trees not just at the times of the making of the application under s 14B and the making of an order under s 14D(1), but also the ongoing state of affairs of both the trees as ongoing subjects of the ongoing action of obstruction of sunlight or a view as a consequence of the trees concerned.
4. In summary, this tracing back from "the trees concerned" in s 14E(2)(a) to "trees that are the subject of the application concerned" in s 14D(1), to "trees to which this Part applies" in s 14B, to the definition of the trees to which the Part applies in s 14A(1), and then to "trees...being situated on adjoining land" in s 14B, reveals a legislative intention to refer to the trees on adjoining land as ongoing subjects of the ongoing action of obstruction of sunlight to windows of, or a view from, a dwelling situated on the applicant's land. The different statutory provisions might on their face refer to the obstruction occurring at different times - s 14B at the time of making an application and s 14D and s 14E at the time of making an order under s 14D - but the use of the present continuous tense of "are obstructing" in s 14E(2) and of "being situated" in s 14B, and the interlinkages between the statutory provisions, signify that the obstruction as a consequence of the trees is ongoing, happening now and going to happen in the future.
5. Thirdly, assessment under s 14E(2)(a) of the degree of obstruction that occurs as a consequence of "the trees concerned" directs attention to the particular trees that are the subject of the application concerned. Trees are heterogenous in their genotype, phenotype, physiology, physiognomy and phenology, amongst other biological features. The obstruction that must be assessed is the obstruction that occurs as a consequence of the particular trees that are the subject of the application.
6. This assessment of the trees concerned must also be undertaken with the recognition that the trees are dynamic living organisms that grow and change over time, both in their overall life cycle from germination to death and in their seasonal life cycle from season to season. Any obstruction of sunlight or a view that occurs as a consequence of the trees will change in degree through the life cycle and seasonal cycle of the trees. Consider again the example I have given of a hedge of deciduous trees. The trees will leaf out in spring, form a dense canopy in summer, release their leaves to fall to the ground in autumn, and be leafless in winter. The obstruction of sunlight or a view as a consequence of deciduous trees will be greatest when the trees are in leaf with a dense canopy and least when the trees are leafless.
7. The assessment of the degree of obstruction of sunlight or a view required by s 14E(2)(a) needs to have regard to this seasonal change in the leaf canopies of deciduous trees. The assessment is not restricted to the condition of the trees at the moment of the hearing of the application under s 14B of the Trees Act. That would produce inconsistent results. A court hearing an application in mid-winter, if the assessment is restricted to the condition of the trees at the date of the hearing, might find that there is not a severe obstruction, as the leafless trees allow sunlight and views through the trees, but a court hearing the same application in mid-summer might find that there is a severe obstruction, as the dense leaf canopies of the trees prevent sunlight or views through the trees. The varying degree of obstruction of sunlight and views that occurs from season to season can properly be said to be as a consequence of "the trees concerned" (the phrase in s 14E(2)(a)), the deciduous trees, "being situated on adjoining land" (the phrase in s 14B). And that varying degree of obstruction can be taken into account when assessing under s 14E(2)(a) whether the trees concerned "are severely obstructing" sunlight or a view.
8. This example illustrates that the words "are severely obstructing" in s 14E(2)(a) need to be construed in the context of the particular trees that are the subject of the application concerned and the fact that the trees concerned are dynamic living organisms which may obstruct sunlight and views differently at different times of the year.
9. Fourthly, s 14F sets out matters the Court is to consider "before determining an application under this Part". Determining an application includes making an order under s 14D(1) to remedy, restrain or prevent a severe obstruction that occurs as a consequence of trees that are the subject of the application concerned. The matters in s 14F include considerations whose assessment cannot be undertaken at only one point in time, whether that be the date an order is made or the date of the hearing of the application, but rather which require assessment over a longer timescale. Paragraphs (o) and (p) are examples.
10. The consideration in paragraph (o) is:

"the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost".

"whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves".

1. Paragraph (o) is relevant to the Court's assessment under s 14E(2)(a)(i) of whether the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. The time of the year during which sunlight is lost, and the amount and number of hours per day of any sunlight lost, is not to be assessed having regard to the time of year that the hearing happens to take place, but over the whole year. The degree of obstruction of sunlight will wax and wane throughout the seasons of the year.
2. Paragraph (p) is relevant to the Court's assessment under s 14E(2)(a)(i) and (ii) of whether the trees concerned are severely obstructing sunlight or a view. The consideration of whether the trees concerned lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves informs the assessment of the degree of obstruction that occurs as a consequence of the trees. That assessment is made having regard to the state of the trees throughout all of the seasons of the year, not just the state of the trees at the time the hearing happens to take place. This matter in paragraph (p) is an express recognition of the point I have made earlier that the assessment of the degree of obstruction must have regard to the particular trees that are the subject of the application, including their phenology.
3. Fifthly, the precondition in s 14E(2), that the Court form the required opinions of satisfaction regarding the matters in paragraphs (a) and (b), is to the Court making an order under s 14D(1). The orders the Court may make under s 14D(1) are threefold: to remedy, restrain or prevent the severe obstruction. An applicant may make an application under s 14B seeking any one or more of these three orders. The inclusion in s 14B and s 14D(1) of an order to prevent a severe obstruction in addition to orders to remedy or restrain a severe obstruction is important. To prevent something is to keep something from happening. In the context of s 14B and s 14D(1), it is to prevent a severe obstruction of sunlight or a view from occurring as a consequence of the trees concerned. In contrast, in order to be able to remedy or restrain a severe obstruction, the obstruction must have already occurred and be occurring. But an order to remedy or restrain a severe obstruction will be ineffective for an obstruction that is yet to occur. This is the purpose of providing for an order to prevent. The applicant can seek under s 14B and the Court can make under s 14D(1) an order to prevent a severe obstruction occurring as a consequence of the trees concerned.
4. The words "are severely obstructing" in s 14E(2)(a) need to be construed in this context that an applicant can seek and the Court can make an order to prevent a severe obstruction of sunlight or a view occurring as a consequence of the trees concerned. The Court's assessment of whether the trees concerned "are severely obstructing" can have regard to not only any obstruction that has occurred or is occurring but also any obstruction that will occur. The assessment of the severity of the obstruction under s 14E(2)(a) will vary according to when the obstruction occurs: backward-looking for obstructions that have occurred, present-looking for obstructions that are occurring and forward-looking for obstructions that are yet to occur. So too, the orders the Court may make will vary depending on when the severe obstruction occurs: orders to remedy or restrain a obstruction that has occurred and is occurring, and an order to prevent a obstruction that is yet to occur.
5. Sixthly, the assessment under s 14E(2)(a) of the degree of obstruction as a consequence of the trees concerned needs to be distinguished from the time at which that assessment is required to be undertaken. Section 14E(2) fixes the time of assessment by reference to when the Court makes an order under Part 2A: "The Court must not make an order under this Part unless it is satisfied..." of the matters in paragraphs (a) and (b). The formation of the opinion of satisfaction about the matters in paragraphs (a) and (b) of s 14E(2) is a precondition to the Court being able to make an order under s 14D(1) of the Trees Act. The time at which the Court makes an order under s 14D(1) may or may not coincide with the date of the hearing. It will be when the Court delivers its judgment ex tempore; it will not be when the Court reserves its judgment. The latter was the situation in this case: the case was heard on 20 July 2023 but judgment was not delivered until 20 December 2023.
6. Mrs Unsworth submitted that, although legally the Court must form the required opinion of satisfaction at the time of making an order under s 14D(1), in practice the Court will form that opinion on the basis of the evidence adduced at the hearing. That evidence will describe the state of the trees at the time of the hearing. The Court is entitled to assume that there has been no material change in circumstances, including the state of the trees and the degree of obstruction as a consequence of the trees, unless it is otherwise advised by a party_: Rodny v Weisbord_ [2024] NSWCA 183 at [60] and [63]. Mrs Unsworth argued that the Court must assess the degree of obstruction under s 14E(2)(a) having regard only to the evidence of the state of the trees concerned at the time of the hearing, unless otherwise advised.
7. This argument, however, conflates the time at which the assessment of the degree of obstruction must be undertaken with the actual assessment of the degree of obstruction. It may be accepted that s 14E(2) fixes the time of assessment as being when the Court makes an order under s 14D(1). But that does not demand that the assessment is confined to the state of the trees and the degree of obstruction as a consequence of those trees at that precise time. For reasons I have explained, the question of whether the trees concerned are severely obstructing sunlight or a view can be answered by reference to the trees concerned and their obstruction of sunlight or a view over a longer time scale. Based on this longer assessment, the Court determines whether it is satisfied of the matters in s 14E(2)(a) and (b) before it makes an order under s 14D(1).
8. Seventhly, Mrs Unsworth's construction of s 14E(2)(a) as requiring the assessment of the degree of obstruction as a consequence of the trees concerned to have regard only to the state of the trees on the day of the hearing is inconsistent with the statutory purpose of providing a simple and practical scheme for the resolution of disputes between neighbours concerning trees.
9. One inconsistency is that the statutory scheme could be gamed by the neighbour on whose land the trees are situated, such as by the neighbour pruning the trees that are the subject of the application concerned just before the hearing, so as to alter the state of the trees that is to be assessed. This would cause the Court's assessment of the degree of obstruction as a consequence of the trees concerned to vary depending on whether the respondent chooses and is able to prune the trees the subject of the application concerned before the hearing takes place.
10. A second is that the assessment becomes dependent on a factor outside of either neighbours' control - the date on which the Court, in its discretion, fixes the hearing of the application. The date of the hearing of the application could materially affect the Court's assessment of the degree of obstruction as a consequence of the trees concerned. As I have explained for deciduous trees, a hearing fixed in mid-winter rather than mid-summer could materially change the Court's assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned. Even for non-deciduous trees, the degree of obstruction as a consequence of the trees concerned is a product of the phenology of the trees. Plant phenology is the response of plants to variations in climate and environmental conditions such as light, temperature and precipitation. Variations may occur in the long-term or short-term. Long-term changes in the climate system may affect the growing seasons, changing the timing at which leaf growth, flowering and fruiting of plants occurs. Short-term variations in environmental conditions, such as high temperatures and low precipitation, may seriously affect the growth, productivity and health of the plants. A hearing fixed at a time of particular variations in environmental conditions that affect the trees' growth, productivity and health, rather than at another time, may influence the Court's assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned.
11. A third is that, depending on the differences in the relative topography and heights of the trees and the dwelling on the adjoining properties, the Court's assessment of the degree of obstruction of sunlight as a consequence of the trees concerned will vary from mid-winter to mid-summer because of the difference in the angle of the sun. A hearing fixed in mid-winter rather than mid-summer may affect the Court's assessment of the degree of obstruction of sunlight as a consequence of the trees concerned.
12. Mrs Unsworth's construction of the words "are severely obstructing" in s 14E(2)(a), which would give rise to such inconsistencies with the statutory purpose of providing a simple and practical scheme for the resolution of disputes between neighbours concerning trees, is not to be preferred over a construction that does not give rise to such inconsistencies.
13. For these seven reasons, s 14E(2)(a) of the Trees Act is not to be construed as demanding that the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees concerned be restricted to the state of the trees as at the date of the hearing. The assessment can have regard to the state of the trees over a longer time scale. To the extent Mrs Unsworth's grounds of appeal contended that the Commissioner erred on a question of law by not construing s 14E(2)(a) as so restricting the assessment of the degree of obstruction, I reject those grounds. The Commissioner did not misinterpret s 14E(2)(a)(ii) by not restricting his assessment of the degree of obstruction of the view from Mrs Hennessy's dwelling as a consequence of the trees to the state of the trees on the day of the hearing. The Commissioner could properly assess the degree of obstruction of the view as a consequence of the trees having regard to not only the state of the trees and the obstruction as occurring on the day of the hearing, but also the state of the trees and the obstruction as a consequence of the trees that are going to occur.
14. That was the assessment the Commissioner said he was undertaking in [15] of the judgment:

"Based on this, rather than limit my assessment of the view obstruction to the day of the hearing, I consider what is most likely the ongoing state of affairs here: a hedge that is approximately 200 mm taller than the trees' height on the day of the hearing."

1. The Commissioner stated that this finding of what is the most likely state of affairs was based on two facts. First, at the time of Mrs Hennessy making the application the trees had grown to a height of 600mm above the fence, 200mm taller than the trees' height on the day of the hearing. This would have been the height of the trees on which the Commissioner would have based his assessment of view obstruction had the trees not been pruned two days before the hearing. Second, Mrs Unsworth had stated at the hearing that "it is her intention to maintain the trees at a height 200mm above the trees' height observed at the hearing.": at [15]. The trees would return to being 600mm above the fence.
2. The Commissioner's findings of the state of the trees and the obstruction as a consequence of the trees in "the ongoing state of affairs" were based on these two facts. The state of the trees at the time of Mrs Hennessy making the application to the Court under s 14B was that they formed a dense hedge, 600mm above the fence, which the Commissioner found entirely obstructed the view from Mrs Hennessy's west-facing windows, so that only the sky remained visible above the trees: at [16], [22], [23] and [49]. That state of affairs continued until the trees were pruned two days before the hearing to a height of 400mm above the fence. The trees at that height still severely obstructed the view from Mrs Hennessy's west-facing windows: at [18], [22]-[24]. The Commissioner found that the state of affairs that occurred before this pruning would again occur because Mrs Unsworth stated she intended to allow the trees to grow back to and be maintained at the previous height of 600mm above the fence: at [15]. The severity of the obstruction would increase to what it was at the time of making the application as Mrs Unsworth allows the trees to grow back to their former height of 600mm above the fence: [23]. The severity of the obstruction would only be reduced by pruning the trees to a height of 150mm above the fence: at [51], [53].
3. The ongoing state of affairs found by the Commissioner, therefore, was of a past state of affairs going into a future state of affairs. The past state of affairs was of a group of trees forming a hedge, which were at the time of making the application and continuing up to two days before the hearing, of a height 600mm above the fence and severely obstructing a view from Mrs Hennessy's house. The future state of affairs was of the same group of trees forming a hedge, which will again be of a height 600mm above the fence and severely obstructing a view from Mrs Hennessy's house. There would be an interregnum between these two periods, after the trees were pruned and before they grow back to their former height, but this gap was found by the Commissioner to be insufficient to displace this finding of "the ongoing state of affairs".
4. These factual findings and conclusions of the Commissioner are not open to challenge on an appeal restricted to errors on questions of law. The Commissioner's assessment of the degree of obstruction as a consequence of the trees was based on his factual findings of the ongoing state of affairs. In these circumstances, the Commissioner's assessment of the degree of view obstruction as a consequence of the trees did not involve error on a question of law. I reject these grounds of appeal.
5. As I have found that the Commissioner did not misinterpret s 14E(2)(a), it is not necessary to decide Mrs Hennessy's alternative submission that any error in interpreting or applying s 14E(2)(a) was not material to the Commissioner's decision as he also found that the trees were severely obstructing a view from Mrs Hennessy's house on the day of the hearing. The Commissioner's finding that the hedge needed to be pruned to 150mm above the fence, which is below both the height of the hedge at the date of the hearing (400mm above the fence) and the height of the hedge in the most likely state of affairs (600mm above the fence), to abate the severe obstruction, would support this submission, but it is unnecessary to decide this.

1. Mrs Unsworth argued that the Commissioner erred by not limiting the order he made under s 14D(1) to prune the trees of the hedge to only those trees that are severely obstructing the view from Mrs Hennessy's house.
2. The application identified five windows, labelled W1 to W5, in Mrs Hennessy's house, the view from which was claimed to be obstructed by trees of the hedge. The hedge itself was identified as having 20 trees (approximately), labelled T1 in the north to T20 in the south. Windows W1 to W5 were identified in the diagram as being located adjacent to the southern section of the hedge up to around halfway along the length of the hedge.
3. The Commissioner found that Mrs Unsworth's lilly pilly hedge severely obstructs a view from Mrs Hennessy's house: at [24] and [52]. That finding was not specific to the view from any particular windows of Mrs Hennessy's house. Section 14E(2)(a)(ii) only required the Commissioner to be satisfied that the trees concerned are severely obstructing a view from a dwelling situated on Mrs Hennessy's land. Nevertheless, the Commissioner identified the impact to be greater for windows W3 and W4, which "are tall double windows that maximise the potential to enjoy the western view from the living room", than for windows W1 and W2, which "are smaller windows with deep sills - the view is less accessible here than elsewhere": at [23].
4. Mrs Unsworth argued that the Commissioner did not identify which particular trees of the hedge obstruct the view from Mrs Hennessy's house. The Commissioner's findings that the western view from windows W3 and W4, and to a lesser extent from windows W1 and W2, is severely obstructed would suggest that the trees obstructing the view are those adjacent to those windows. These trees are in the southern section of the hedge. The Commissioner might be inferred to be referring to this section of the hedge when he said in [26] that: "The section of the hedge that obstructs [the] view is less than 2 metres from the applicant's family room windows." This statement might suggest that the trees in the northern section of the hedge, adjacent to an outdoor living area and a studio to the north of the house's family room windows, might not obstruct the view from Mrs Hennessy's house. In this regard, the Commissioner observed that "[n]ot all trees in the hedge affect the applicant equally": at [50]. Nevertheless, Mrs Unsworth noted that the Commissioner made no finding about the obstruction, if any, as a consequence of the trees in the northern section of the hedge: Appellant's Outline of Submissions in Reply, [11].
5. Mrs Unsworth submitted that, absent a finding that the trees in the northern section of the hedge do severely obstruct a view from Mrs Hennessy's house, the Commissioner had no basis to order the pruning of trees that were not found to cause a severe obstruction: Appellant's Outline of Submission in Reply, [10]. Mrs Unsworth argued that the Court's power under s 14D(1) is limited to making orders to remedy, restrain or prevent the severe obstruction of sunlight or a view "if the obstruction occurs as a consequence of trees that are the subject of the application concerned." Section 14D(1) only permits a remedial response to the obstruction that has been found to exist: Appellant's Outline of Submissions, [27]. That is to say, the order needs to be tailored to remedying, restraining or preventing the obstruction as a consequence of particular trees. If certain trees of the hedge do not cause a severe obstruction, the Court has no power to make an order in relation to those trees.
6. Mrs Unsworth submitted that the two reasons given by the Commissioner for making an order in relation to all of the trees in the hedge, regardless of the fact that not all trees affect Mrs Hennessy equally, namely "aesthetic reasons" (in [50]) and what "the respondent has done in the past" (in [51]), do not enliven the power in s 14D(1) to order the pruning of all of the trees in the hedge. Pruning for either of those reasons does not remedy, restrain or prevent a severe obstruction that occurs as a consequence of the trees: Appellant's Outline of Submissions, [35], [40].
7. Mrs Unsworth challenged the Commissioner's order to prune the whole of the hedge as going well beyond a remedial response to remove the cause of the severe obstruction:

"It requires the pruning of long sections of hedge not found to be causing any form of obstruction to view. That was not because of any notion that in order to remove the severe obstruction, it was practically necessary to impose such broader obligations. The justification was only an assertion that it "seems appropriate" to order that the entire hedge be pruned 'for aesthetic reasons', given that in the past it had been maintained at a uniform height.": Appellant's Outline of Submissions, [38].

1. Mrs Hennessy contested that the power in s 14D(1) to make orders is as confined as Mrs Unsworth contended. Legally, Mrs Hennessy contended that the trees in respect of which orders under s 14D(1) can be made are the line of trees comprising the hedge that the Commissioner found to satisfy the statutory test of severe obstruction. That finding that the line of trees comprising the hedge severely obstructs a view from Mrs Hennessy's house enlivened the power to make such remedial orders in respect of the hedge as the Commissioner regarded appropriate: Respondent's Outline of Submissions, [28].
2. Factually, Mrs Hennessy submitted that Mrs Unsworth has not specified the part or parts of the hedge that she says are not causing a severe obstruction of a view from Mrs Hennessy's house and therefore should not have been the subject of the Commissioner's order: Respondent's Outline of Submissions, [27]. Mrs Hennessy submitted that the Commissioner's finding was that "the hedge" and "the respondent's lilly pilly hedge" severely obstructs a view from Mrs Hennessy's house: at [24] and [52]. This was a finding in relation to the group of trees that form the hedge, and was not limited to only some part or parts of the hedge. The Commissioner accepted that not all trees in the hedge affect Mrs Hennessy equally: at [50]. But this is not a finding that that some trees are not severely obstructing a view from Mrs Hennessy's house.
3. I reject Mrs Unsworth's ground of appeal that the Commissioner misinterpreted or misapplied s 14D(1) when ordering the pruning of all of the trees in the hedge. Legally, the Court may make orders under s 14D(1) in relation to all of the trees in the group of trees that form the hedge, regardless of whether every tree in the group of trees is found to severely obstruct sunlight or a view. The condition to the making of an order under s 14D(1) is that the obstruction occurs as a consequence of the "trees that are the subject of the application concerned." These are the trees in respect of which the application seeks an order to remedy, restrain or prevent a severe obstruction of sunlight or a view, being trees to which Part 2A applies. Part 2A applies to groups of two or more trees that are planted so as to form a hedge and that rise to a height of at least 2.5m above existing ground level.
4. Hence, the trees in respect of which an order may be made under s 14D(1) are all of the trees in the group of trees that are the subject of the application. The nexus required by s 14D(1) is between the obstruction and the group of trees that form the hedge, not with the individual trees within that group. The nexus will be established if any one or more of the trees in the group of trees obstructs or obstruct the view; it is not necessary that all of the trees in the group of trees obstruct the view. If one or more of the trees in the group of trees obstructs or obstruct the view, the obstruction can be said to occur as a consequence of the group of trees that are the subject of the application.
5. In this case, the trees that are the subject of Mrs Hennessy's application are all of the trees (approximately 20) that form the hedge along the common boundary between Mrs Unsworth's property and Mrs Hennessy's property. The Commissioner found that trees in the group of trees that form the hedge severely obstruct the view from Mrs Hennessy's house. The trees obstructing the view certainly would include those adjacent to windows W3 and W4, and likely windows W1 and W2, but may include other trees. The Commissioner's statement that "[n]ot all trees in the hedge affect the applicant equally" (in [50]) is capable of being read as a finding that all trees affect the view from Mrs Hennessy's house to some extent, but some trees affect the view to a greater extent.
6. But even if the Commissioner were to have found that only some of the trees in the group of trees that form the hedge severely obstruct the view from Mrs Hennessy's house, this is sufficient to establish the nexus of consequence in s 14D(1) between the severe obstruction and the trees that are the subject of the application concerned. The Commissioner had power to make an order under s 14D(1) to prune all of the trees in the group of trees that form the hedge.
7. That the power in s 14D(1) extends to making an order in respect of all trees in the group of trees that form the hedge, regardless of whether every one of those trees severely obstructs sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the applicant's land, is supported by the specification in s 14D(2) of the types of orders the Court may make.
8. The orders specified in s 14D(2) as being orders the Court may make are stated to be "without limiting the powers of the Court to make orders under subsection (1)." The order in paragraph (c) to "require the taking of specified action to maintain a tree or trees at a certain height, width or shape" and the order in paragraph (d) to "require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree", are not stated to be limited to only the particular trees in the group of trees that form the hedge which severely obstruct sunlight or a view, or to only remedying, restraining or preventing the parts of those trees which cause a severe obstruction of sunlight or a view. An order to remove trees and replace them with trees of a different species clearly shows the width of the powers to make orders under s 14D(1).
9. In any event, the Commissioner's finding was that it was the group of trees that form the hedge which severely obstructs a view from Mrs Hennessy's house: at [24] and [52]. The Commissioner did not make a finding that some trees do and other trees do not severely obstruct the view from Mrs Hennessy's house. In these circumstances, Mrs Unsworth has not established that the Commissioner erred in his exercise of the power in s 14D(1) to order the pruning of all of the trees that form the hedge, even if s 14D(1) were to be interpreted narrowly as Mrs Unsworth contended.
10. I reject the ground of appeal concerning the scope of the order under s 14D(1).

1. Mrs Unsworth advanced the procedural fairness ground in the alternative to the grounds that the Commissioner misinterpreted and misapplied s 14E(2)(a). If as a matter of law it was open to the Commissioner to assess the degree of obstruction of a view from Mrs Hennessy's house having regard to the most likely ongoing state of affairs of the trees, Mrs Unsworth argued that the Commissioner denied her procedural fairness by not identifying, in advance of or at the hearing, that this was to be the framework of analysis, so that she could adduce evidence and advance submissions accordingly.
2. Mrs Hennessy contested that there was any denial of procedural fairness. First, the Commissioner's consideration of what is most likely to be the ongoing state of affairs only came about because of Mrs Unsworth's conduct of pruning the trees the subject of the application before the hearing, including only two days before the hearing, and her statement of intention to allow the pruned trees to grow back to their previous height. The Commissioner's assessment of the severity of the obstruction as a consequence of the trees needed to have regard to this conduct and statement of intention. The Commissioner did so by considering what is most likely the ongoing state of affairs of the trees. This finding that the trees would grow to and be maintained at a height of 200mm above the height of the trees at the time of the hearing is a finding of fact. There was no denial of procedural fairness in making this finding of fact in response to Mrs Unsworth's conduct and statement of intention.
3. Second, there could be no denial of procedural fairness by the Commissioner correctly interpreting and applying s 14E(2)(a). The assessment under

s 14E(2)(a) of whether the trees are severely obstructing a view from Mrs Hennessy's house may have regard to what is most likely the ongoing state of affairs of the trees. The Commissioner was not obliged to advise Mrs Unsworth of what is the correct interpretation of s 14E(2)(a) or that he would apply that correct interpretation in his assessment of the degree of obstruction of a view from Mrs Hennessy's house. 4. Third, Mrs Unsworth had an opportunity to present evidence and make submissions based on the trees being at a height greater than they were on the day of the hearing. Mrs Hennessy's application included photographs of the trees at the height they were before Mrs Unsworth pruned them, which was the height Mrs Unsworth said she intended to maintain the trees after they grow back from her pruning. Mrs Unsworth tendered her own photographs of the hedge from her property when they were higher. Mrs Unsworth's planner, Ms Sneyd, included photographs of the hedge obstructing the view from Mrs Hennessy's house on 5 July 2023 after some trimming but before the trimming two days before the hearing. Mrs Unsworth's barrister made submissions on the obstruction of the view from Mrs Hennessy's house on the basis of the hedge at its height on the day of the hearing, as the Commissioner was able to observe, and if "the hedge were to grow an additional 100 to 200mm": T336 lines 11-21. Mrs Hennessy submitted that Mrs Unsworth "had, and took, the opportunity to address the Commissioner on the application of the statute to the hedge in its higher form": Respondent's Outline of Submissions, [25]. 5. I reject Mrs Unsworth's ground that she was denied procedural fairness, for the reasons advanced by Mrs Hennessy. If, on a proper construction of s 14E(2)(a), the Commissioner could have regard to the likely ongoing state of affairs of the trees in assessing whether the trees are severely obstructing a view from Mrs Hennessy's house, the Commissioner was not obliged to give notice to the parties of the correct interpretation of s 14E(2)(a) or the application of that interpretation to the facts that he might find on the evidence before the Court. The Commissioner's finding of the likely ongoing state of affairs was based on the evidence of the height of the trees at the time Mrs Hennessy made the application and before Mrs Unsworth pruned the trees, the observed height of the trees at the hearing after Mrs Unsworth had pruned the trees, and Mrs Unsworth's stated intention to allow the trees to grow 200mm higher than their height at the hearing, which would be their former height at the time of making of the application. This evidence was available to and in part advanced by Mrs Unsworth. She had the opportunity to, and did, make submissions on the evidence of whether the trees at their height at the hearing or 200mm higher severely obstructed a view from Mrs Hennessy's house. In these circumstances, the Commissioner did not deny Mrs Unsworth procedural fairness by assessing the severity of obstruction of the view from Mrs Hennessy's house on the basis of the likely ongoing state of affairs of the trees.

1. Mrs Unsworth has not established that the Commissioner erred on a question of law in any of the ways raised in the grounds of appeal. The appeal should be dismissed, with costs.
2. The Court orders:

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent's costs of the appeal.

22 August 2024 - Paragraph [86]: "s 14D(2)(a)" amended to "s 14E(2)(a)"