The Lilly Pilly and Brush Cherry trees
61This group of trees, located along the boundary fence between the Payns' property and the Wisdoms' property comprises five Lilly Pilly trees and two Brush Cherrys. The numerical prerequisite is satisfied as, in our view, selfevidently is their planting; their grouping and their forming of a hedge.
62The heights of each of them above both the lawn level and the raised garden bed level are set out in the table reproduced earlier in this decision.
63As a consequence, given the recorded heights of trees T4 and T 5, we are satisfied that these trees, on either point of measurement, satisfy the tests in s 14A(1) and thus have the jurisdiction of the Court enlivened with respect to them.
64With respect to trees T 2, T 3, T 6 and T 7, we are satisfied that, because the lawn on the Payns' side of the fence and the lawn on the Wisdoms' side of the fence in the vicinity of this elevated garden bed containing trees T 2 through to T 7 (T 8 being planted adjacent to the deck), we have concluded that, for these trees, existing ground level should be regarded as the lawn - as the structure within which these trees are planted is akin to a planter box rather than an extension to the deck level.
65We note that, in reaching this conclusion with respect to these trees, although we did not need to express any opinion as to measuring points for the Ti Trees and Magnolia, our expression of opinion with respect to the Lilly Pillys and Brush Cherrys should not lead to any inference concerning those other trees. If it were to be necessary, on some future occasion, to make some determination about the appropriate measuring point with respect to those trees, that would be a matter for determination on that occasion rather than on this one.
66As a consequence, the four of the trees, T 4 through to T 7 satisfy the jurisdictional test as to height. Although trees T 2, T 3 and T 8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual.
67For instance, if a group of two or more trees were to be planted in a linear fashion so as to form a hedge but were planted with alternating species so that every second tree was one which, at maturity, was incapable of rising at least 2.5 m above existing ground level but that the second species was so capable and would dominate or engulf the more modest tree species (bearing also in mind that vines are now deemed to be trees by virtue of s 4 of the Trees (Disputes Between Neighbours) Regulation 2007), such a planting arrangement could render Part 2A of the Act inapplicable. Such an outcome is, in our view, entirely contrary to and frustrating of the purposes for which the amendments creating Part 2A were introduced.
68As a consequence, we are satisfied that these trees, as a complete grouping, satisfy the tests under s 14A.
69We therefore turn to consider the jurisdictional tests that are required to be satisfied pursuant to s 14B. To do this, it is necessary to discuss, in some detail, the nature of the outlook toward the northeast from the Wisdoms' dwelling. In this analysis, we confine ourselves to consideration of the outlook from the dwelling as there was no complaint in the proceedings, given the height of the metal fence between the properties, that there was any view from the north-western private open space of the Wisdoms' dwelling that was relevant in these proceedings.
70There are, in our assessment, four elements that, to varying degrees, form part of the outlook from the Wisdoms' dwelling. These are:
·The immediate vegetation in the Lilly Pilly/Brush Cherry hedge along the boundary with the Payns' property; and
·the Bottlebrush tree earlier discussed;
·the vegetation in the riparian zone along the creek to the immediate north and northeast of the duplex development, this being, on our understanding of the survey plan and the site inspection, being almost entirely if not entirely within the boundaries of the Reserve; and
·such elements of the grassy slopes of the Reserve as are able to be seen through or around and any of the three earlier described elements.
71The photograph shown below, taken through the window of the Wisdoms' kitchen shows the view corridor presently available over trees T 6, T 7 and T 8, past the Bottlebrush tree to the creek fringing vegetation and to portion of the grassy slope of the Reserve beyond. Tree T 5 is in the right foreground and the Bottlebrush tree can also be seen indistinctly to its left and behind it.
72A second photograph, taken from a seated position on the Wisdoms' elevated deck, is also illustrative of the view but shows that the view corridor to the northwest of the Brush Cherrys and the Bottlebrush is far less available from this perspective.
73At this point, we should deal with the nature of the view, at its most extensive, that would be available to the Wisdoms' if the application were to succeed with respect to the Lilly Pilly and Brush Cherry trees.
74This assessment is undertaken against our earlier finding that there is no jurisdiction to order any interference with the size or height of the Bottlebrush tree. The consequence of that finding is that, if the two Brush Cherrys were pruned to the extent sought by Mr Hannaford on behalf of Mr and Mrs Wisdom, leading their restriction to a heighten of ~ 2.5 m above ground level on the Wisdoms' side of the fence, the view corridor along the side of the Bottlebrush would be retained but the dominant foreground view would be to the Bottlebrush itself. To the northeast, again on the basis that the two Brush Cherry trees were pruned to the maximum extent sought by the Wisdoms, we are satisfied that the canopy spread of the Bottlebrush is such that, from positions standing at the right of the Wisdoms' deck and looking to the north-east; seated at the picnic table on the deck and observing around the corner of the built structure to the immediate east of the kitchen; or standing at the kitchen window and looking north-east, such view as might be available to the east of the Bottlebrush would be dominated by the vegetation in the riparian zone of the creek on the southern boundary of the Reserve. The fall of the land in the Reserve to the east would, in our assessment, mean that only limited views into that Reserve would be available to the east of the Bottlebrush tree.
75The vegetation in the riparian zone is, from our observation during the course the site inspection, primarily exotics in the understorey and ones that are not considered desirable or are weeds. The canopy species appeared to include Coral Trees, also considered an undesirable species. This riparian zone vegetation contributes significantly to the obstruction of views to the Reserve. There were also a number of Casuarinas and the occasional eucalypt in this vegetation but the dominant obstruction of views toward the Reserve that are either actually available along the view corridor to the west of the Bottlebrush or are potentially available along a view corridor to the east of the Bottlebrush would be disrupted by the foliage of the riparian zone vegetation.
76Ms Johnstone submitted to us that we should conclude, if we were to adopt and apply the view assessment principles set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140 that, with respect to the quality of the views actually or potentially available from the Wisdoms' residence, we should concluded that they were, to apply her words, ordinary, unremarkable, insignificant views. Because of what she submitted was the inferior quality of the view, as we understood her submissions, she proposed that we should conclude that, even if the view were obstructed and that that obstruction was severe, the nature of the view did not warrant any intervention by us.
77We have decided to deal with this submission, perhaps a little out of logical sequence given the further conclusions that follow, because we consider it appropriate to indicate that we reject such a proposition in this context. We reject the proposition because, although it might be correct to say that the outlook to the north from the Wisdoms' dwelling might be unremarkable, the outlook is not, in the context of the dwelling and the arrangement of its living spaces (having regard to the northerly aspect of the indoor and outdoor living spaces) to regard this view as insignificant. To the contrary, we think it self evident to conclude that, as part of the design for the duplex development, the Wisdoms sited the development to maximise the retention of their north-easterly outlook from the living areas of the retained dwelling. In our view this was an appropriate and desirable design outcome and the outlook thus retained should be regarded as significant in the context of the retained dwelling on the Wisdoms' property.
78As a consequence, we are satisfied that that which is within the outlook from their property is not so insignificant as to warrant being discounted as constituting a view for the purposes of s 14B(b) of the Act. The consequence of that finding is that we move to consider the second of the tests that require to be addressed arising from s 14B of the Act. That is the question of whether or not the interruption to the views caused by the Lilly Pilly and Brush Cherry hedge should be regarded as severe.
79For this assessment, it is necessary to consider the contribution, if any, that is made by each of the trees in this hedge to the interruption of these views. It is our opinion that the wording of s 14B requires us to make this assessment on a similar basis to the assessment that is required at the height of the trees - that is an assessment as at the date of the site inspection.
80It is appropriate, therefore, to observe that trees T 2 and T 3, the most easterly of the trees in this hedge, are described by Mr Wisdom in the diagram reproduced earlier as only having a potential to obstruct views from his property. This necessarily implies that there is no present obstruction caused by these trees. We concur with this necessary implication as each of these trees presently only just rises above the top of the metal fence and the amount of this growth is significantly low. Any possible line of sight from any portion on the elevated deck on the Wisdoms' property obstructed by these trees is not to anything other than the concrete driveway elements or lawn elements on the Payns' property.
81Trees T 4 and T 5, the two Brush Cherry trees, rise to a height of little over 4 m above the level of the lawn on the Payns' property. Although there is, possibly, some minor south to north cross fall between the lawn on the Wisdoms' property and lawn on the Payns' property, these two trees rise to a height which is at least in the vicinity of 4 m above the lawn on the Wisdoms' property and are clearly able to be seen in the foreground between the viewing points on the Wisdoms' property and the Bottlebrush beyond shown in the two photographs reproduced earlier. To a very great extent, if these trees were to be pruned to the height proposed by the Wisdoms, the view that would be reinstated by such pruning would predominantly but not exclusively be a view of the Bottlebrush.
82As it is evident from the way the matter has been pursued on behalf of the Wisdoms that they do not consider the view of the Bottlebrush to be particularly significant or desirable (as they wish the view of that tree to be significantly reduced if we were to have had the jurisdiction to make such orders and, as a matter of discretion, were to have determined to make such orders), we do not consider that there is any basis upon which we could regard, on a subjective basis were it to be relevant, the obstruction of the Wisdoms' view of the Bottlebrush as being severe.
83However our assessment is not one which should be personal to the Wisdoms and thus we do not proceed to conclude that, for the purposes of s 14B, the impact on their view should not be regarded as severe. It is, however, clear that the view that the Wisdoms are seeking to have maximised is the view to the Reserve. That view, at the present time, both actual and potential, can be regarded as filtered because of the extent of the understorey and canopy weed infestation in vegetation along the riparian zone of the creek within the Reserve.
84Over objections from Ms Johnstone, we admitted two photographs tendered by Mr Hannaford that show that a local community Landcare group, in conjunction with the council, is undertaking restorative works within the Reserve. We have no other evidence, apart from these photographs, concerning these land restoration activities. The photographs are reproduced below:
85With respect to the hand written X and arrow on the upper two of these photographs, these were not admitted as evidence - the admission as evidence was confined to that contained in the photographic images alone. Mr Hannaford submitted that we should conclude that the endeavours of these environmental restorers would include the removal of weed species in the riparian zone in the vicinity of the duplex development and within the actual or potential view corridors from the Wisdoms' property. There is no evidence in these photographs that could reasonably support such a conclusion. Apart from these photos, there is no other evidence of these activities. We cannot be satisfied, to the necessary degree of comfortable satisfaction suggested by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that any such conclusion could be drawn.
86In addition, it is pertinent to note that to the extent that trees T 6, T 7 and T 8 might just exceed the top of the metal fence, any such vegetation from these trees above the height of the top of the fence does not presently provide any obstruction to the existing view corridor to the north between the Bottlebrush and the duplex development. At the present time, to the extent that there is an interruption to the view along this view corridor to the grassy sloped area within the Reserve, that interruption is caused by vegetation in the riparian zone of the creek rather than by any vegetation planted by Mr and Mrs Payn and certainly not by the Lilly Pilly and Brush Cherry hedge currently being considered.
87As a consequence, as the interruption to the view to the Reserve along this corridor is not occasioned by any vegetation within our jurisdiction under Part 2A of the Act, that element must be set aside for the assessment of the severity of any interruption of views pursuant to s 14B.
88Similarly, to the extent that the Bottlebrush interrupts views to the Reserve beyond it, for the reasons earlier set out, such interruption cannot be considered in our assessment of the severity of any interruption to the views from the Wisdoms' property.
89Finally, relevant to this assessment, any interruption by the two Brush Cherrys of potential views to the north-east and the east must be assessed against the fact that, if those trees were to be pruned as requested, the resultant view would be virtually entirely confined to a view of the Bottlebrush and to the predominantly weed infested riparian zone.
90Setting aside the abstract rather than subjective aesthetics of the possible reinstatement of a view of the Bottlebrush, we cannot conclude that the interruption of this view to this riparian zone weed infestation could be regarded as severe even if it were an interruption of the view of a significant component of such infestation. It is clear that significant elements of this view are made up of weed species such as privet that, as a general policy objective, have been determined to be undesirable. Some of them may, in fact, be legally proscribed but our site inspection did not include any examination that would permit such a conclusion to be drawn.
91However, we are satisfied that a view of this particular weed infestation or a potential view of this weed infestation could not constitute a view that it is desirable to preserve or create. The corollary of that is, in our view, that the obstruction of a view of such a weed infestation is incapable of constituting a severe obstruction of a view from the Wisdoms' property.
92The further consequence, therefore, is that the only a view that is capable of being regarded as severely obstructed from any of the viewing points on the Wisdoms' property is the view of the Bottlebrush tree and such views as are available into the grassed and driveway areas at the front of the duplex development. However, the dominant view that is interrupted by the Brush Cherrys is a view of the Bottlebrush. Both of these types of vegetation, although marginally qualitatively different as to form; flower, fruit type and formation; canopy shape and colour are, nonetheless, similar pleasant vegetative outlooks. We do not consider that there is any qualitative basis upon which we could conclude that the obstruction of the view of the Bottlebrush tree by the two Brush Cherry trees could conceivably be regarded as a severe interruption of that view.
93As a final consequence, we are satisfied for the reasons that we have set out that there is no severe interruption of any view from the Wisdoms' property caused by any tree or trees that are amenable to any order being made by us pursuant to the Act. It therefore follows that this aspect of the application also fails.