Wein v Reeves

Onsite hearing

1. The hearing took place onsite and both parties were present. The trees were inspected initially, and the applicant submitted that the respondent's property contained two hedges, the subject of the Trees Act. Mr Wein's Tree Dispute Claim Details (Form G) includes an arborist report (Annexure A) from Peter Castor of Tree Wise Men, dated July 2021 (the arborist's report). He notes that the tree numbering system used had been adopted from earlier arboricultural advice received by the applicant, and I shall maintain the same numbering.
2. The Castor report notes that the subject trees form two hedges, with Hedge 1 comprising tree 5, a Ficus lyrata (Fiddle Leaf Fig) and tree 6, a Syzygium sp. (Lilly Pilly). Hedge 2 is composed of two Cupressus torulosa (Bhutan Cypress), two Cupressus arizonica and Waterhousea floribunda (Weeping Lilly Pilly). During the site inspection, a fifth Cypress was identified as a Cupressus sempervirens (Italian Cypress), and designated Tree 4A.
3. Greg Frith and Mathew Tansley from Rygate Surveyors attended the hearing on behalf of the applicant, but they, nor Mr Castor, were not needed for cross-examination.

Respondent's position

1. Mr Reeves rejects the applicant's claim and seeks no intervention with the trees. He noted the role of the trees in providing shade, and privacy to his property from adjacent neighbouring properties, and from the applicant's property higher up the slope. He also noted their aesthetic beauty and contribution to the local ecosystem.

Jurisdictional requirements

1. In Pt 2A matters under the Trees Act, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].
2. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views, or of sunlight to windows of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits that the trees provide.

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: 14A Application of Part (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).

Hedge 1

1. After my inspection and consideration of the trees in site context, I am not satisfied that trees 5 and 6 are planted (whether in the ground or otherwise) so as to form a hedge (Hedge 1).
2. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 ('Johnson'), Preston CJ provides commentary in an unsuccessful 'hedge' appeal under the Trees Act. At [39]-[43], His honour, discussing the language of s 14A(1)(a) says; "[39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge. [40] Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape. [41] But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge. [42] The factors considered by the Commissioner in determining whether the Turpentine was planted so as to form a hedge with the palms (in paras 28-30) were not factors that were excluded as irrelevant by s 14A(1)(a) of the Trees Act. [43] Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
3. Hedges may be comprised of two trees, but when representations are made that only two trees comprise a hedge, there is a distinct onus on the applicant to prove that the relationship between the trees satisfies the requirements of the Trees Act. Typically, this would involve trees of similar species and form, planted at the same time, relatively close together.
4. As noted at [41] of Johnson, "Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees."
5. In this case, the two trees are of different species, and are strongly dissimilar and incompatible in terms of appearance, morphology, function, and growth habit. The Fig (Tree 5) has large, rigid, sclerophyllous leaves which provide significant shade and screening for the respondent's pool. It has previously been pruned. Alternatively, the Lilly Pilly (Tree 6) is a specimen tree with small, delicate, mesophyllous, pendant leaves, which appears unpruned.
6. I accept that the trees are likely to have been planted, but the Fig is located in a small raised garden bed at the back of the pool, while the Lilly Pilly is positioned more than seven metres away, in a lower area near the south western corner of the yard. Considering the scale of this landscape, and in the absence of other evidence to the contrary, I consider this distance between the trees to be far too great to imply a relationship between dissimilar trees, and certainly for them to be deemed as forming a hedge, for the purposes of the Trees Act.
7. As said at [40] of Johnson; "The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape."
8. The applicant claims that trees 5 and 6 form a hedge because their foliage is intermingling, but he has failed to address critical issues relating to planting. The trees were planted long before the applicant occupied his property about 10 years ago. Considering [43] of Johnson, satisfaction of the intent informing "planted so as to form a hedge" requires that the trees were planted at the same time. It is axiomatic that one tree cannot constitute a hedge. The respondent provided evidence to show that the Lilly Pilly was purchased 18 years ago, and speculated that the Fig was more than 50 years old. While this is difficult to confirm, with the arboricultural expertise I bring to the Court, I am satisfied that the Fig has been in situ for much longer than the Lilly Pilly. The onus is on the applicant to prove his case, but he has provided no evidence to substantiate that the trees were planted at the same time.
9. Considering all these elements, I am not satisfied that the applicant has proven, on the balance of probability, that trees 5 and 6 were planted for the purpose of forming a hedge, nor that they currently form a hedge, as required by the Trees Act. As a consequence, 14A(1)(a) is not met for Hedge 1, and trees 5 and 6 are not trees to which the Part applies.
10. As his Honour states, at [38] of Johnson; "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees."

Hedge 2

1. The applicant submitted that trees 1-4, 4A and 7 comprise Hedge 2. Though I described them as an arboretum, I am satisfied that the five mature Cypress trees (1-4 and 4A) were most likely planted so as to form a hedge, and currently form a hedge. Regardless that they display a curvilinear pattern, rather than a straight line, and comprise three different species, they are the same genus, and thus similar morphology and appearance, are about the same age, and provide a dense shade and privacy screen.
2. For similar reasons as for Hedge 1, I am, however, not satisfied that Tree 7 should be considered as part of Hedge 2. This weeping Lily Pilly is physically separated from trees 1-4 and 4A by many metres, and this is shown in the drone derived aerial photograph supplied by the applicant, which displays a large gap between the canopy of tree 7 and those of the intermingled canopies of trees 1-4 and 4A, as well as distinctly different foliage colour. Tree 7 is in a different area of the property - the front/side yard, rather than the back yard.
3. Trees 1-4 and 4A are all similar to each other in form, foliage and morphology, but in all these areas, are quite dissimilar to that of tree 7. As had been the case with the Fig and Lilly Pilly with Hedge 1, the differences in form, foliage, and appearance between Cypress trees and a Weeping Lilly Pilly are not subtle, they are stark. The respondent provided receipts showing that tree 7 was purchased and planted eight years after the Cypress trees, and this was uncontested. This alone does not preclude tree 7 becoming a member of an existing hedge under the Trees Act, but when combined with all these other factors that suggest that tree 7 is not part of Hedge 2, this additional element reinforces the lack of relationship between tree 7, and trees 1-4 and 4A.
4. Moore SC and Hewett AC assessed a Bottlebrush tree in a similar context in Wisdom v Payn [2011] NSWLEC 1012 ('Wisdom'), at [44]-[46]; "[44] Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings. [45] We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge. [46] Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded."
5. I am satisfied that the Weeping Lilly Pilly (tree 7) complies with this description of "a single tree that is obviously separate and distinctly so", which cannot be regarded as a part of Hedge 2.
6. As a consequence of these considerations, s 14A(1) is satisfied for Hedge 2, comprising trees 1-4 and 4A, so the Court next considers s 14B. This states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
7. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The contact chronology included by the applicant provides satisfactory evidence to engage s14E(1)(a).
8. The next step is to assess the severity of the obstruction of view from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
9. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (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.
10. In order to assess severity, the Court inspected viewing locations throughout the three-level dwelling, where the lowest level is termed Level 1. From bedrooms windows 5 and 6 on this level, views are fully obstructed, while from adjacent bedroom window 7, a water view is available. No remedy is available under the Trees Act for this obstruction, as it is caused by trees 5 and 6, which have been determined to be specimen amenity trees, rather than trees comprising a hedge. The Trees Act has no jurisdiction covering obstruction of views or sunlight by specimen trees.
11. Level 2 contains Window 2 in the main bedroom, and Window 3 in the study. Very good water, coastline, and district views are available from each, though the Cypress are in the middle of the view from the study. From window 4, an informal living room, views are significantly impacted from a seated position but, again, the obstruction is predominantly caused by trees 5 and 6 for which no remedy exists under the Trees Act. In any case, marked gaps remain between tree canopies through which Sydney Harbour and land-water interface can be viewed.
12. Level 3 contains the main living/kitchen area. From here (window 1), wide, extensive district views, headland cliffs, land-water interface, and both harbour and ocean views are readily available. The Cypress trees restrict full visual access to the harbour, but from this level, a tall palm and a Norfolk Pine tree in neighbouring properties cause more obstructive impact.
13. The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfill. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Thus, the Act sets a high bar.
14. The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145 ('Haindl'). Moore SC and Hewett AC at par [26] state: "However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis."
15. At [28] of Haindl, the Commissioner's say; "For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction."
16. The applicant proposed that views from Level 3 should not be relied on for jurisdiction, but rather, that the Court's findings should be based on view obstruction on levels 1 and 2 only. The applicant submitted that one should interpret "…to remedy, restrain or prevent the severe obstruction of: (b) any view from a dwelling situated on the land", such that severe obstruction of any view engages the jurisdiction, independent of consideration of good or outstanding views available in other areas of the dwelling. In common with Haindl at [28], such a procedure "would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction". To assess the severity of obstruction of a view from a dwelling situated on the applicant's land requires consideration of all views available from a dwelling. Applicants sometimes omit windows with poor views from consideration in the interests of efficiency, but it is unreasonable, at best, for an applicant to expect to withdraw or 'hide' an area of a dwelling containing outstanding views, such that the severity of view obstruction in other areas of the dwelling may be deemed relatively greater. This is contrary to the procedure consistently applied by the Court under Pt 2A, it compromises the intent of the jurisdiction, and taken to its extreme, would create absurd outcomes.
17. No persuasive reason has been submitted as to why this case should be considered exceptional. Therefore, customary procedures shall be followed, and views available from level 3 shall be included in this analysis.
18. Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity'), contains a four-step process in assessment of view sharing, the first three of which often assist the Court with Part B applications. "[26] The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured."
19. The notion of iconic views is not necessarily critical in determination of severity of obstruction, and is a contextual, rather than specific consideration. It has little relevance here. "[27] The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic."
20. All photos taken by Mr Castor were from a sitting position. It is reasonable to assume that views available from each location would have been less obstructed had he taken them standing. One can also imply that the views through the main bedroom window that the applicant covets, whilst lying down, must be deemed even more "difficult to protect" than sitting views. "[28] The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating."
21. This step reinforces the recommendation to assess the obstruction impact "for the whole of the property, not just for the view that is affected". The impact on views from living areas and linked kitchens is considered more significant than from bedrooms or service areas, and thus views available from window 1 on level 3 are prioritised, while those from level 1, and those in the main bedroom on level 2 are allocated less significance.
22. Paragraph 64 of Haindl builds on Step 3 of Tenacity; "[64] It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view."
23. This is the context in which Hedge 2 should be assessed. The hedge is about 15 to 30 metres from the applicant's dwelling. From level 3 and 2 of the dwelling, the Cypress trees occupy perhaps 5% of the available view, and, as noted above, are part of the view. Considered qualitatively, on either side of the hedge are extensive water views, land-water interface, and district views.
24. The absence of the Hedge 2 would make only a marginal difference in terms of view enhancement from Level 3 and a moderate improvement from either a standing or sitting position from level 2. Therefore, I am not satisfied that the view obstruction to the "whole of the property" is severe, I would instead consider it mild to moderate. As a consequence, s 14E(2)(a)(ii) is not engaged.

Does the severity of the obstruction outweigh other matters?

1. If I was wrong in finding the view obstruction not to be severe, and s 14E(2)(a)(ii) was thus met for the hedge, there would be a need to consider the balancing of interests required by s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
2. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F would be required: 1. The trees contribute to the local ecosystem, though this is likely to relate predominantly to habitat for possums and birds, rather than food (subss (g)). 2. The trees provide a contribution to the natural landscape and scenic value of the land on which they are situated (subss (h)). 3. With respect to pruning, I disagree with Mr Castor's opinion that the four Cypress trees can be repeatedly lopped, as recommended, with "no long-term detrimental impact on tree health or longevity". While there may be little apparent negative impact in the short term, these are long lived trees, and ongoing repetition of this pruning throughout their life-cycle is likely to result in increased stress, reduction in the trees propensity to reshoot, and increased likelihood of canopy dieback, and shortened longevity. 4. Currently the trees are untouched, with natural form. At 4.6.3 (the arborist's report pp. 11), Mr Castor says "the trees will be retained with only minor pruning of the upper crown" while other trees in the rear yard would be retained unpruned. Though Mr Castor easily disregards the retention of natural form, the respondent says that retention of natural shape and form is important for the amenity value he gains from the trees. The respondent notes not wanting his trees subjected to a maintenance regime involving a pruning technique (lopping or topping) explicitly discouraged in AS4373-2007 Pruning of amenity trees, because of the (listed) likely resultant negative impacts on tree structure and health. 5. Unsurprisingly, Mr Reeves also rejects the high cost that would be required to support the proposed ongoing maintenance regime. There is no sound reason why the trees should be assigned lesser significance, relative to other genus or species, simply because they are Cypresses. While garden design styles and plant selection go in and out of fashion, Cypresses make a marked contribution in many established Sydney gardens. 6. There appears to be a disconnect between the extent of lopping specified, which ranges from approximately 1.6m to approximately 2.2m (plus 1 metre allowance for regrowth) for the five Cypress trees (the arborist's report pp. 12), and the height and relative proportion of their canopies protruding above the proposed pruning line shown in Attachment H (the arborist's report, after pp. 24). Notwithstanding that clarification can be gained from the available survey, the latter appears much taller than the listed figures. For each Cypress in his planting schedule, Mr Castor has also noted a trunk diameter at the final cut location of between approximately 90 and 110mm. It is not uncommon for regrowth following initial pruning, to be inhibited after final pruning cuts of relatively large stem diameters such as these. 7. Considering the trees narrow form, that the trees are distant from the applicant's viewing locations, and three of the four are configured in a north-south orientation, they occupy a narrow segment of the very broad view available. The reduction of maximum 1.6-2.2 metres (plus 1 metre allowance for regrowth) from the top of the canopies would require intervention to remove a very small area of the view, at considerable expense, and expose little different to the view readily available on either side of the trees (subss (k)). 8. The hedge makes a significant contribution to providing privacy and protection from the sun and wind (subss (l)).

Conclusions

1. The following conclusions are made; 1. I am not satisfied that the trees 5 and 6 form a hedge under the framework of Pt 2A of the Trees Act, nor that Hedge 2 contains Tree 7. I am, however, persuaded that Trees 1-4, and 4A form a hedge, for which s 14A(1)(a) is engaged. 1. As the trees are distant from the relevant viewing locations, the sum of the trees canopy spread is relatively narrow, the hedge occupies a relatively small proportion of the available broad outlook, and outstanding views are readily available from level 3 of the applicant's dwelling, I am not satisfied that the obstruction of views to the applicant's dwelling, as a result of the trees, is severe, and instead determine it to be mild to moderate. Therefore, s 14E(2)(a)(ii) is not engaged. 2. Even if I was wrong, and the view obstruction was severe, the shading, privacy and other ecosystem services the trees provide are sufficiently important, and the likely cumulative impact of the proposed pruning has negative consequences such that the benefits to be obtained by the applicant through removal of the obstruction of his views, would be unlikely to outweigh these factors in favour of retaining the trees intact. 3. The Review of the Trees Act, at p 39, says; "It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access (or in this case views) which had not existed at the time of purchase". In this light, the respondent submitted that at least some of the trees had not grown into the view during Mr Wein's occupation, and thus questioned the application of the jurisdiction (subss (c)). As this submission related to Hedge 1, which did not satisfy the requirements of the jurisdiction, this issue became immaterial to the determination of the dispute, and therefore was set aside.
2. As a result of all these considerations, the orders of the Court are: 1. The application is dismissed.

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: 19 January 2022