Wiesner v McCormack

Jurisdictional requirements

1. Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.
2. Section 14A(1) tests whether the trees are a hedge for the purpose of the Trees Act. The trees must be a group that are planted (whether in the ground or otherwise) so as to form a hedge (s 14A(1)(a)) and at least 2 of the trees must rise to a height of at least 2.5 metres (s 14A(1)(b)).
3. Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land (s 14B(b)), if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
4. Under s 14C(1) of the Trees Act, an applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to: "(a) the owner of the land on which the trees are situated, and (b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to trees, and (c) any other person the applicant has reason to believe will be affected by the order."
5. Section 14D specifies the Court's jurisdiction to make orders. In accordance with s 14D(1), the Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned.
6. Section 14E addresses matters of which Court must be satisfied before making an order, as follows: "(1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C."
7. Section 14E(2) of the Trees Act, which is particularly significant, states: "(2) The Court must not make an order under this Part unless it is satisfied: (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, and (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."
8. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b): this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

The onsite hearing

1. After a short delay, the hearing commenced at the respondents' property, with an inspection of the trees and the site. The row of 20 Pear trees, which averaged about 5 m tall, were growing at fairly uniform intervals in close proximity to the common boundary fence. Though the trees were without foliage, they displayed long extension growth indicative of sound health and vigour.
2. The Court moved to the applicants' dwelling, where the severity of view obstruction by the trees was assessed from V1, a patio accessed through a glass sliding door in the kitchen, and V2, a large picture window in the lounge room at the dwelling's northeastern end.

Submissions

1. As well as written Applicants' Submissions, Mr Lee relied on the Application Form (Form C), the Tree Dispute Claim Details (High Hedges) (Form G), the applicants' photographs, copies of communication between the parties, evidence of service, and copies of an Affidavit (TMC-1) and a Statement from Ms McCormack (TMC-2), dated 6 June 2024 and 24 June 2024, respectively.
2. Mr Lee claimed the applicants' southerly view, that had been available upon the occupation of their dwelling, was severely obstructed by the Pear tree hedge and the obstruction was likely to worsen due to further tree growth.
3. In TMC-1, at p 4, Ms McCormack contended the Court had no jurisdiction to hear the matter, based on McDougall v Philip [2011] NSWLEC 1280 (McDougall), at [23], which says: "The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. 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 a view] which had not existed at the time of the purchase".
4. Ms McCormack noted the applicants had no view of Mount Bogong from their original dwelling upon their property purchase in 2015 and claimed, "[i]t is therefore unjust for the applicants to seek a view that they did not have when they purchased their property".
5. Mr Lee also cited McDougall and submitted "the applicants are not seeking an order to gain a view of Mount Bogong and the surrounding Tablelands they did not have at the time of purchase".
6. I agree with the applicants' position. Though their current dwelling did not exist, the applicants' view towards Mount Bogong was available upon their purchase, notwithstanding the view may have been improved by the raised pad of soil installed below the dwelling. The applicants have occupied their new dwelling (which is the subject of this application) since October 2020, when the trees were also planted. Consequently, the Court has power to adjudicate the dispute, based on assessment of the current severity of view obstruction by the hedge relative to obstruction of the view by the hedge in October 2020.
7. In response to the applicants' claim that s 14B of the Trees Act provided for prevention of future severe obstruction by the respondents' hedge, in TMC-2, at p 3, Ms McCormack cited Tooth v McCombie [2011] NSWLEC 1004 (Tooth), at [14], which says: "The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing."
8. This interpretation is reinforced by Tooth, at [15], which says: "Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders."
9. Ms McCormack also referenced Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 (Grantham), which includes extensive analysis of the jurisdiction of s 14 E(2)(a)(ii), at [43]-[53]: "In determining this matter I must consider the submissions made by the parties' advocates. Mr Galasso contends that I have been wrong in my interpretation of the Act, in particular in applying the word 'are' in s 14E(2)(a)(ii) to mean the severity of the obstruction at the time of the hearing and not taking into account any future obstruction. Similarly, he considers the making of orders to prevent future obstructions is inconsistent with that interpretation. I consider that the making of orders under Part 2A of the Act comes at the end of a path that traverses through a number of gates. Each gate in turn must be passed through to get to the final destination of an Order of the Court. The process of making an application under Part 2A is enabled by s 14B. The wording is clear - An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of (in this case) any view from a dwelling situated on the land (the applicant's land) if the obstruction occurs as a consequence of trees to which this part applies being situated on adjoining land. The first step in determining the matter is to ask the questions - do the trees subject to the application meet the jurisdictional tests in s 14A, that is, are they trees to which this Part of the Act applies, and are the trees on adjoining land. That is s 14A is the first gate through which the application must pass. In this matter, consistent with other findings in matters heard under Part 2A, I have determined that the trees do meet the jurisdictional tests in s 14A(1) as explained in [27]-[28] of this judgment. The trees are situated on land to which this Part applies (s 14A(2)) and they are on adjoining land. As a consequence, the determination progresses through to the next gate. The next gate through which the application must pass before any orders can be made is the next jurisdictional test in s 14E(1). This states that The Court must not make an order under this Part unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated and if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with s 14C. The parties have not contended this section and I am satisfied that there has been a reasonable attempt to reach agreement, as evidenced in the application, and notice has been given in accordance with s 14C. Therefore the determination can progress to the next gate. The next gate of relevance to this matter, being in regard to views and not sunlight, is s 14E(2)(a)(ii). This section states: The Court must not (my emphasis) make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land, and thence to s 14E(2)(b). Only if the Court is satisfied that there is a severe obstruction of a view caused by the trees does the Court need to move through to the next gate which is s 14E(2)(b) and the balancing of interests that is inherent in that section. I understand the point Mr Galasso is making with respect to the use of the word 'prevent' in sections 14B and 14D. However, the Court's power to make orders under s 14D, which states: The Court may make any such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of (in this matter) any view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned , only arises if the jurisdictional tests in s 14A, s 14E(1), s 14E(2)(a)(ii) and s 14E(2)(b) are satisfied. I do not accept Mr Galasso's assertions that I have been wrong in my interpretation of the word 'are' in s 14E(2)(a)(ii). As I stated in Tooth v McCombie at [14] - [15]: 14 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing. 15 Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders. I maintain my interpretation of s 14E(2)(a)(ii) that the trees must be causing a severe obstruction of a view at the time of the hearing and stand by the reasoning in Tooth v McCombie at [14]. In [49] I have underlined the word 'the'. This to me is taken to imply that the severe obstruction is the one that meets the jurisdictional test in s 14E(2)(a)(ii). This is compared to the use of the word 'a' in s 14B as in An owner of land may apply....to remedy, restrain or prevent a severe obstruction... Similarly, if the Court is satisfied that there is a severe obstruction of a view from an applicant's dwelling and the applicant's interests in regaining that view outweigh any other interests then, and only then, may the Court make orders under s 14D. In that instance there is nothing inconsistent in the Court making orders to not only remedy the situation but also to also make orders to prevent the obstruction in the future - as this is what s 14D says the Court may do. In consideration of Ms Duggan's contention at [41], s 14D places no restriction on what height a tree/ hedge may be pruned to as the discretion is left up to the Court. If 2m is appropriate in the particular circumstances of a matter then that is a matter for the Court to determine. Similarly, the Court is not obliged to make the orders the applicant seeks; s 14D enables the Court to make any orders it thinks fit. However, the application must get through the gates first."
10. Mr Lee tendered Porteous v Mares [2022] NSWLEC 1544 (Porteous), where the Court found the applicant's views were severely obstructed by bamboo at the hearing, but the circumstances were dissimilar to this case. In Porteous, at [19], Galwey AC said, "I find that the Applicants had access to a view that is now severely obstructed by the Respondents' bamboo hedges", whereas the applicants' desired view here had never been obstructed by the Pear tree hedge.
11. Based on Haindl v Daisch [2011] NSWLEC 1145 (Haindl); at [28], Ms McCormack claimed that the applicants' view of Mount Bogong and adjacent snow-capped ridges was only a small part of applicants' available view, which, "… is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis …".
12. Further, Ms McCormack referenced the view sharing principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 and submitted the applicants' desired views were gained across the applicants' side boundary.
13. The respondents emphasised the importance of the trees for their daughters' privacy in the swimming pool area which was front and centre of the applicants' 'new' view, along with other considerations arising under s 14F of the Trees Act. The applicants claimed that existing vegetation already provided privacy and, consistent with the requirements of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Pear trees should not rise higher than "the 1.8 m fence restrictions that would otherwise apply to their swimming pool fence".

Do the trees form a hedge?

1. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: "(1) This Part applies only to groups of two or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level)."
3. The trees' average height was about 5 m and the respondents acknowledged having planted the Pears close together in a linear configuration to form a privacy screen. Consequently, s 14A(1) of the Trees Act is engaged.
4. Section 14B is engaged as the parties own adjoining land, and the applicants have applied to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from their dwelling as a result of the respondents' Pear tree hedge.
5. Mr Lee provided affidavits from a Licenced Process Server, as evidence of service of the application documents with appropriate notice on Ms McCormack, who accepted document service on behalf of both respondents (s 14C(1)(a)) and evidence of personal service with appropriate notice on Albury Council (s 14C(1)(b)). No other parties were relevant to the proceedings, therefore s 14C of the Trees Act is engaged.

Reasonable effort to reach agreement

1. With respect to s 14E(1)(a) of the Trees Act, in TMC-1, at p 2, Ms McCormack noted the failure of the applicants to acknowledge the respondents' repeated proposal to prune the trees in October 2024, the protracted absence of contact by the applicants between 2020 and Mr Lee's initial letter in 2023, and changes to the requested pruning height. Ms McCormack claimed the applicants refused offers to meet and discuss the situation, provided insufficient notice for the proposed settlement conference, and thus had not made a reasonable effort to reach agreement with them.
2. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provides extensive commentary about the 'reasonable effort' required to satisfy the Trees Act. At [195] of Robson, his Honour notes: "[t]he language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
3. The requirement under s 14(1)(a) of Pt 2A, which is the same requirement as s 10(1)(a) of Pt 2 of the Trees Act, is considered at [191]-[194] of Robson: "The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
4. While dispute resolution through discussions between neighbours is preferable and recommended, the Trees Act "does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner", nor require applicants to compromise, and the reasonable effort may be made "at any time up until the Court determines the application".
5. The applicants made initial contact and requests for tree pruning in November 2020 and at least three letters of demand were sent by Mr Lee between June 2023 and February 2024. Further, the application was not made until late April 2024. Though the respondents disliked the legal tone and threats of court action, and challenged content of the applicants' letters, I am satisfied the applicants made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 14E(1)(a) is engaged.
6. Section 14E(1)(b) is also engaged as the applicants satisfied the requirements at s 14C of the Trees Act.

Is the view severely obstructed?

1. Under s 14E(2) of the Trees Act, the Court must not make an order under this Part unless it is satisfied: "(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, and (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. I accepted Ms McCormack's argument, based on findings in Grantham and Tooth, that assessment of severity of view obstruction shall be based on the circumstances at the onsite hearing. Application of an alternative rationale is limited to situations where obstruction of views or sunlight has been severe in the past and such severe obstruction is likely to rapidly recur.
3. In assessing the severity of obstruction, at s 14E(2)(a), the common boundary and the closest Pear trees were about 30 m distant from the applicants' dwelling and about 10m lower such that the view line from the dwelling to the trees was about 15-20 degrees below horizontal. The applicants' desired view was gained over various mainly deciduous established trees in the respondents' front yard, which were around 10-15 m tall. Due to the trees low position and the considerable distance of the hedge from the applicants' dwelling, the Pear trees constituted a small part of the applicants' available view.
4. Though Mr Lee claimed that the applicants' view was severely obstructed, the applicants' desired view of snow on Mount Bogong was readily available above both the hedge and the taller trees in the respondents' front yard, from a sitting or standing position at both V1 and V2. The hedge caused a minor obstruction of the view of the rear of the respondents' property, negligible to minor impact on the applicants' total view, but no impact on the Mount Bogong component of the view. As noted in TMC-2 at p 6, the applicants' own photographs also consistently showed the view of Mount Bogong with rolling hills below, visible above the top of the Pear tree hedge.
5. Removal of the Pear trees would thus have minimal impact on the applicants' view as any view obstruction they caused was largely duplicated by view obstruction by the respondents' larger deciduous trees. It appeared that the Pear trees would need to be about double their existing height to duplicate the established trees' current obstructive impact and the tallest Pear trees appeared about 300-500mm below a height that caused any obstruction of the applicants' view.
6. I accepted, based on Haindl, at [28], that Mount Bogong and the surrounding tablelands, comprised only a small part of the applicants' available view, and determination of severity of view obstruction required assessment relative to the applicants' available view. I described the various components of the wide view available to the applicants which included the Pear trees, as Moore SC had done in Haindl, at [27].
7. Further, as the Pear trees are deciduous, even if their obstructive impact was much greater, desired winter snow views would be available over and through the branch scaffold when the leaves are absent.
8. Towards the conclusion of the hearing, given the paucity of the applicants' evidence, I invited Mr Lee to mount an argument as to how the view obstruction before us may objectively be determined to be severe and he conceded he could not. Section 14E(2)(a) of the Trees Act is not engaged, therefore the Court has no powers to make orders.
9. If I was wrong, and the hedge was causing a severe view obstruction, s 14E(2)(a) would be engaged and Court must consider s 14E(2)(b), which requires consideration of a range of matters under s 14F of the Trees Act.
10. Swimming pool fence height restrictions arising from the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 have no relevance to this application under the Trees Act (s 14F(d)).
11. Regarding other obstructions to the applicants' view, at s 14F(m), the respondents' property contained a variety of mainly deciduous established trees around 10-15 m tall. It appeared that the Pear trees would need to be about double their existing height to duplicate the established trees' obstructive impact. Across the highway beyond the respondents' land, a row of mature, typically large Plane trees obstructed distant views across a large expanse west of the applicants' desired view. Many Eucalyptus trees were growing in the near and mid distance in paddocks beyond the highway, and one large tree in close proximity encroached the applicants' view just west of Mount Bogong.
12. In site context, the hedge is very important for the respondents' privacy (s 14F(l)) and this role would be emphasised, had determination of s 14E(2)(b) of the Trees Act been required.

Conclusion

1. As the hedge was not obstructing the applicants' desired Mount Bogong view and was causing minimal obstruction to the applicants' total available view, s 14E(2)(a) is not satisfied.
2. Even if the Pear trees had been obstructing the applicants' desired view, the respondents' choice of deciduous hedge trees avails winter views for the applicants, albeit framed by the trees, and privacy for the respondents in summer.
3. Further, though snow on distant mountains is a desirable feature of the applicants' view, I have not been persuaded that the view of Mount Bogong and adjacent tablelands, absent of snow when the Pear trees have foliage, is superior to views of similar distant ridges variously available across the applicants' broad view.

Orders

1. The Court orders that: 1. The application is refused.

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: 16 August 2024

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

(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, and

(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."

1. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b): this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

1. After a short delay, the hearing commenced at the respondents' property, with an inspection of the trees and the site. The row of 20 Pear trees, which averaged about 5 m tall, were growing at fairly uniform intervals in close proximity to the common boundary fence. Though the trees were without foliage, they displayed long extension growth indicative of sound health and vigour.
2. The Court moved to the applicants' dwelling, where the severity of view obstruction by the trees was assessed from V1, a patio accessed through a glass sliding door in the kitchen, and V2, a large picture window in the lounge room at the dwelling's northeastern end.

1. As well as written Applicants' Submissions, Mr Lee relied on the Application Form (Form C), the Tree Dispute Claim Details (High Hedges) (Form G), the applicants' photographs, copies of communication between the parties, evidence of service, and copies of an Affidavit (TMC-1) and a Statement from Ms McCormack (TMC-2), dated 6 June 2024 and 24 June 2024, respectively.
2. Mr Lee claimed the applicants' southerly view, that had been available upon the occupation of their dwelling, was severely obstructed by the Pear tree hedge and the obstruction was likely to worsen due to further tree growth.
3. In TMC-1, at p 4, Ms McCormack contended the Court had no jurisdiction to hear the matter, based on McDougall v Philip [2011] NSWLEC 1280 (McDougall), at [23], which says:

"The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. 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 a view] which had not existed at the time of the purchase".

1. Ms McCormack noted the applicants had no view of Mount Bogong from their original dwelling upon their property purchase in 2015 and claimed, "[i]t is therefore unjust for the applicants to seek a view that they did not have when they purchased their property".
2. Mr Lee also cited McDougall and submitted "the applicants are not seeking an order to gain a view of Mount Bogong and the surrounding Tablelands they did not have at the time of purchase".
3. I agree with the applicants' position. Though their current dwelling did not exist, the applicants' view towards Mount Bogong was available upon their purchase, notwithstanding the view may have been improved by the raised pad of soil installed below the dwelling. The applicants have occupied their new dwelling (which is the subject of this application) since October 2020, when the trees were also planted. Consequently, the Court has power to adjudicate the dispute, based on assessment of the current severity of view obstruction by the hedge relative to obstruction of the view by the hedge in October 2020.
4. In response to the applicants' claim that s 14B of the Trees Act provided for prevention of future severe obstruction by the respondents' hedge, in TMC-2, at p 3, Ms McCormack cited Tooth v McCombie [2011] NSWLEC 1004 (Tooth), at [14], which says:

"The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing."

1. This interpretation is reinforced by Tooth, at [15], which says:

"Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders."

1. Ms McCormack also referenced Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 (Grantham), which includes extensive analysis of the jurisdiction of s 14 E(2)(a)(ii), at [43]-[53]:

"In determining this matter I must consider the submissions made by the parties' advocates. Mr Galasso contends that I have been wrong in my interpretation of the Act, in particular in applying the word 'are' in s 14E(2)(a)(ii) to mean the severity of the obstruction at the time of the hearing and not taking into account any future obstruction. Similarly, he considers the making of orders to prevent future obstructions is inconsistent with that interpretation. I consider that the making of orders under Part 2A of the Act comes at the end of a path that traverses through a number of gates. Each gate in turn must be passed through to get to the final destination of an Order of the Court.

The process of making an application under Part 2A is enabled by s 14B. The wording is clear - An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of (in this case) any view from a dwelling situated on the land (the applicant's land) if the obstruction occurs as a consequence of trees to which this part applies being situated on adjoining land.

The first step in determining the matter is to ask the questions - do the trees subject to the application meet the jurisdictional tests in s 14A, that is, are they trees to which this Part of the Act applies, and are the trees on adjoining land. That is s 14A is the first gate through which the application must pass.

In this matter, consistent with other findings in matters heard under Part 2A, I have determined that the trees do meet the jurisdictional tests in s 14A(1) as explained in [27]-[28] of this judgment. The trees are situated on land to which this Part applies (s 14A(2)) and they are on adjoining land. As a consequence, the determination progresses through to the next gate.

The next gate through which the application must pass before any orders can be made is the next jurisdictional test in s 14E(1). This states that The Court must not make an order under this Part unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated and if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with s 14C. The parties have not contended this section and I am satisfied that there has been a reasonable attempt to reach agreement, as evidenced in the application, and notice has been given in accordance with s 14C. Therefore the determination can progress to the next gate.

The next gate of relevance to this matter, being in regard to views and not sunlight, is s 14E(2)(a)(ii). This section states: The Court must not (my emphasis) make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land, and thence to s 14E(2)(b). Only if the Court is satisfied that there is a severe obstruction of a view caused by the trees does the Court need to move through to the next gate which is s 14E(2)(b) and the balancing of interests that is inherent in that section.

I understand the point Mr Galasso is making with respect to the use of the word 'prevent' in sections 14B and 14D. However, the Court's power to make orders under s 14D, which states: The Court may make any such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of (in this matter) any view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned , only arises if the jurisdictional tests in s 14A, s 14E(1), s 14E(2)(a)(ii) and s 14E(2)(b) are satisfied.

I do not accept Mr Galasso's assertions that I have been wrong in my interpretation of the word 'are' in s 14E(2)(a)(ii). As I stated in Tooth v McCombie at [14] - [15]:

14 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.

15 Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders.

I maintain my interpretation of s 14E(2)(a)(ii) that the trees must be causing a severe obstruction of a view at the time of the hearing and stand by the reasoning in Tooth v McCombie at [14].

In [49] I have underlined the word 'the'. This to me is taken to imply that the severe obstruction is the one that meets the jurisdictional test in s 14E(2)(a)(ii). This is compared to the use of the word 'a' in s 14B as in An owner of land may apply....to remedy, restrain or prevent a severe obstruction...

Similarly, if the Court is satisfied that there is a severe obstruction of a view from an applicant's dwelling and the applicant's interests in regaining that view outweigh any other interests then, and only then, may the Court make orders under s 14D. In that instance there is nothing inconsistent in the Court making orders to not only remedy the situation but also to also make orders to prevent the obstruction in the future - as this is what s 14D says the Court may do. In consideration of Ms Duggan's contention at [41], s 14D places no restriction on what height a tree/ hedge may be pruned to as the discretion is left up to the Court. If 2m is appropriate in the particular circumstances of a matter then that is a matter for the Court to determine. Similarly, the Court is not obliged to make the orders the applicant seeks; s 14D enables the Court to make any orders it thinks fit. However, the application must get through the gates first."

1. Mr Lee tendered Porteous v Mares [2022] NSWLEC 1544 (Porteous), where the Court found the applicant's views were severely obstructed by bamboo at the hearing, but the circumstances were dissimilar to this case. In Porteous, at [19], Galwey AC said, "I find that the Applicants had access to a view that is now severely obstructed by the Respondents' bamboo hedges", whereas the applicants' desired view here had never been obstructed by the Pear tree hedge.
2. Based on Haindl v Daisch [2011] NSWLEC 1145 (Haindl); at [28], Ms McCormack claimed that the applicants' view of Mount Bogong and adjacent snow-capped ridges was only a small part of applicants' available view, which, "... is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis ...".
3. Further, Ms McCormack referenced the view sharing principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 and submitted the applicants' desired views were gained across the applicants' side boundary.
4. The respondents emphasised the importance of the trees for their daughters' privacy in the swimming pool area which was front and centre of the applicants' 'new' view, along with other considerations arising under s 14F of the Trees Act. The applicants claimed that existing vegetation already provided privacy and, consistent with the requirements of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Pear trees should not rise higher than "the 1.8 m fence restrictions that would otherwise apply to their swimming pool fence".

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

"(1) This Part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level)."

1. The trees' average height was about 5 m and the respondents acknowledged having planted the Pears close together in a linear configuration to form a privacy screen. Consequently, s 14A(1) of the Trees Act is engaged.
2. Section 14B is engaged as the parties own adjoining land, and the applicants have applied to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from their dwelling as a result of the respondents' Pear tree hedge.
3. Mr Lee provided affidavits from a Licenced Process Server, as evidence of service of the application documents with appropriate notice on Ms McCormack, who accepted document service on behalf of both respondents (s 14C(1)(a)) and evidence of personal service with appropriate notice on Albury Council (s 14C(1)(b)). No other parties were relevant to the proceedings, therefore s 14C of the Trees Act is engaged.

1. With respect to s 14E(1)(a) of the Trees Act, in TMC-1, at p 2, Ms McCormack noted the failure of the applicants to acknowledge the respondents' repeated proposal to prune the trees in October 2024, the protracted absence of contact by the applicants between 2020 and Mr Lee's initial letter in 2023, and changes to the requested pruning height. Ms McCormack claimed the applicants refused offers to meet and discuss the situation, provided insufficient notice for the proposed settlement conference, and thus had not made a reasonable effort to reach agreement with them.
2. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provides extensive commentary about the 'reasonable effort' required to satisfy the Trees Act. At [195] of Robson, his Honour notes:

"[t]he language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."

1. The requirement under s 14(1)(a) of Pt 2A, which is the same requirement as s 10(1)(a) of Pt 2 of the Trees Act, is considered at [191]-[194] of Robson:

"The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7.

The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33.

The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action.

The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."

1. While dispute resolution through discussions between neighbours is preferable and recommended, the Trees Act "does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner", nor require applicants to compromise, and the reasonable effort may be made "at any time up until the Court determines the application".
2. The applicants made initial contact and requests for tree pruning in November 2020 and at least three letters of demand were sent by Mr Lee between June 2023 and February 2024. Further, the application was not made until late April 2024. Though the respondents disliked the legal tone and threats of court action, and challenged content of the applicants' letters, I am satisfied the applicants made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 14E(1)(a) is engaged.
3. Section 14E(1)(b) is also engaged as the applicants satisfied the requirements at s 14C of the Trees Act.

1. Under s 14E(2) of the Trees Act, the Court must not make an order under this Part unless it is satisfied:

(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, and

(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."

1. I accepted Ms McCormack's argument, based on findings in Grantham and Tooth, that assessment of severity of view obstruction shall be based on the circumstances at the onsite hearing. Application of an alternative rationale is limited to situations where obstruction of views or sunlight has been severe in the past and such severe obstruction is likely to rapidly recur.
2. In assessing the severity of obstruction, at s 14E(2)(a), the common boundary and the closest Pear trees were about 30 m distant from the applicants' dwelling and about 10m lower such that the view line from the dwelling to the trees was about 15-20 degrees below horizontal. The applicants' desired view was gained over various mainly deciduous established trees in the respondents' front yard, which were around 10-15 m tall. Due to the trees low position and the considerable distance of the hedge from the applicants' dwelling, the Pear trees constituted a small part of the applicants' available view.
3. Though Mr Lee claimed that the applicants' view was severely obstructed, the applicants' desired view of snow on Mount Bogong was readily available above both the hedge and the taller trees in the respondents' front yard, from a sitting or standing position at both V1 and V2. The hedge caused a minor obstruction of the view of the rear of the respondents' property, negligible to minor impact on the applicants' total view, but no impact on the Mount Bogong component of the view. As noted in TMC-2 at p 6, the applicants' own photographs also consistently showed the view of Mount Bogong with rolling hills below, visible above the top of the Pear tree hedge.
4. Removal of the Pear trees would thus have minimal impact on the applicants' view as any view obstruction they caused was largely duplicated by view obstruction by the respondents' larger deciduous trees. It appeared that the Pear trees would need to be about double their existing height to duplicate the established trees' current obstructive impact and the tallest Pear trees appeared about 300-500mm below a height that caused any obstruction of the applicants' view.
5. I accepted, based on Haindl, at [28], that Mount Bogong and the surrounding tablelands, comprised only a small part of the applicants' available view, and determination of severity of view obstruction required assessment relative to the applicants' available view. I described the various components of the wide view available to the applicants which included the Pear trees, as Moore SC had done in Haindl, at [27].
6. Further, as the Pear trees are deciduous, even if their obstructive impact was much greater, desired winter snow views would be available over and through the branch scaffold when the leaves are absent.
7. Towards the conclusion of the hearing, given the paucity of the applicants' evidence, I invited Mr Lee to mount an argument as to how the view obstruction before us may objectively be determined to be severe and he conceded he could not. Section 14E(2)(a) of the Trees Act is not engaged, therefore the Court has no powers to make orders.
8. If I was wrong, and the hedge was causing a severe view obstruction, s 14E(2)(a) would be engaged and Court must consider s 14E(2)(b), which requires consideration of a range of matters under s 14F of the Trees Act.
9. Swimming pool fence height restrictions arising from the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 have no relevance to this application under the Trees Act (s 14F(d)).
10. Regarding other obstructions to the applicants' view, at s 14F(m), the respondents' property contained a variety of mainly deciduous established trees around 10-15 m tall. It appeared that the Pear trees would need to be about double their existing height to duplicate the established trees' obstructive impact. Across the highway beyond the respondents' land, a row of mature, typically large Plane trees obstructed distant views across a large expanse west of the applicants' desired view. Many Eucalyptus trees were growing in the near and mid distance in paddocks beyond the highway, and one large tree in close proximity encroached the applicants' view just west of Mount Bogong.
11. In site context, the hedge is very important for the respondents' privacy (s 14F(l)) and this role would be emphasised, had determination of s 14E(2)(b) of the Trees Act been required.

1. As the hedge was not obstructing the applicants' desired Mount Bogong view and was causing minimal obstruction to the applicants' total available view, s 14E(2)(a) is not satisfied.
2. Even if the Pear trees had been obstructing the applicants' desired view, the respondents' choice of deciduous hedge trees avails winter views for the applicants, albeit framed by the trees, and privacy for the respondents in summer.
3. Further, though snow on distant mountains is a desirable feature of the applicants' view, I have not been persuaded that the view of Mount Bogong and adjacent tablelands, absent of snow when the Pear trees have foliage, is superior to views of similar distant ridges variously available across the applicants' broad view.