COMMISSIONER: This is an application submitted under s 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Darien Wise against the owners of trees growing on an adjoining property in Curl Curl.
[2]
Background
Mrs Wise, the applicant, and the respondents, Michael and Gail Hickey, enjoy commanding views over and along Curl Curl beach to the north and across the Pacific Ocean to the north-east and east from their elevated sloping location. The applicant's property is higher up the slope, to the west of the respondents', and the parties share a common side boundary, which runs roughly north to south.
In 2003, Mr and Mrs Wise constructed a new three storey house designed to capitalise on the views, with a large kitchen/living area and adjoining veranda at the back of the upper story, and large glass windows along the side wall for about six metres to the rear corner. As this house extends roughly 10 metres beyond that of Mr and Mrs Hickey, these large windows facing the east allow full overview of the respondents' rear yard, as does the veranda.
This development included extensive excavation, and levelling of the yard, which raised the rear of the hitherto sloping block by about 1.5 metres relative to the level of the Hickey's adjacent property. This levelling required the construction of a substantial retaining wall, which is most conspicuous at the rear, where the difference in yard levels is greatest.
In 2004, in response to the overviewing exposure, and in an attempt to reduce the visual impact of the retaining wall, the respondents planted five clumps of Archontophoenix cunninghamiana (Bangalow Palm) with each clump containing two or three palms.
By 2010, the palms had grown to about five metres, sufficiently tall to begin to obstruct views from the applicant's property, and possibly also the respondents'. Over the Christmas period of 2010 - 2011, apparently while the respondents were overseas, the palms were poisoned. This poisoning appeared to include both spraying from above as well as trunk injection, as photographic evidence provided by Mr Hickey displays extensive foliage damage and areas of dead lawn at the base of some clumps, in addition to discoloured and or weeping holes in many trunks. Some palms died from this poisoning, but the majority recovered. The identity of the poisoner is not known.
On 27 May 2017, Mr and Mrs Wise wrote to Mr and Mrs Hickey, advising that the palms were severely obstructing their views and seeking a negotiated solution, while noting their intent to apply under the Trees Act, should these negotiations fail. Subsequent correspondence introduced other contentious topics such as drainage runoff, in addition to tree issues, and, rather than helping, this confused and clouded the situation.
In her application, Mrs Wise seeks the following orders:
1. The respondents engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to remove palms T2, T4 and T5 and the smaller stem belonging to T3.
2. The works must be undertaken in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry.
3. Any replacement planting along the west boundary of the respondents' property should be a species that achieves a maximum height of four metres, or is a species that can be routinely maintained on an ongoing basis by pruning to a maximum height of four metres above ground level, measured at the base of each tree.
4. Order 1 to be completed within 30 days of the date of these orders.
In response, Mr and Mrs Hickey do not oppose intervention, but seek the following orders:
1. The removal of palm stems deemed to cause severe obstruction of views from viewing point V3 of the applicant's dwelling.
2. Completion of stem removal to ground level at the applicant's cost.
[3]
The on-site hearing
The hearing commenced with an inspection of the respondents rear yard. Mrs Wise was accompanied by her husband, Mr Steve Wise, and was represented by Mr Peter Mills, solicitor. Mr Hickey was self-represented, and Mrs Hickey was absent.
The five palm clumps (T1-T5) had been planted in a near straight row, about three metres apart and roughly two metres from the common boundary, except T1, which is positioned closest to the house, and about four metres from the boundary, close to a shed. T2 is a single palm, while the other four are pairs.
Mrs Wise's application included an Expert Witness Report, dated 23 June, 2019 from Ms Catriona McKenzie of Urban Forestry Australia. She acknowledges and agreed to be bound by the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedures Rules 2005.
Mr Mills was granted leave at the hearing to table a bundle of documents which assist in providing context to the poisoning issue. These are marked as Exhibits A to J, and contain an affidavit from Mrs Wise, copies of a plumbing report, correspondence with Warringah Council, and various photographs.
[4]
Jurisdictional requirements - Part 2A
In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].
The first test is s 14A(1), that is, are the palms planted in a row roughly parallel to the north-south boundary of the respondents' rear yard, a hedge for the purpose of the Act?
Section 14A(1) states:
(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).
As palms are defined as a 'tree' for the purpose of the Act, and this hedge, planted in 2004, now reaches about eight metres in height, s 14A(1) is satisfied.
Next, s 14E(1)(a) requires that the applicant has made a reasonable attempt to reach agreement with the owner of the land on which the trees are situated.
Copies of extensive communication between the parties were included in the application. These expose a protracted acrimonious relationship between the parties which appears to initially stem from the respondents' objection to the applicant's 2003 development, and has been exacerbated over subsequent years by drainage and tree issues.
Mr Hickey contended that s 14E(1)(a) has not been satisfied because Mrs Wise had never explicitly detailed her demands, and that ongoing written communication had become increasingly clouded by the introduction of other issues of contention.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ analyses s 10(1)(a), which under Part 2 of the Act applies to the requirement of 'reasonable effort to reach agreement'. His Honour's commentary applies equally to the same test in s 14E(1)(a) for Part 2A applications.
His Honour notes at [191]-[195]:
"[191] 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 Relation s 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.
[192] 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.
[193] 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.
[194] 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.
[195] The 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. For example, s 88K(2)(c) of the Conveyancing Act 1919 and s 40(2)(d) of the Land and Environment Court Act 1979 provide that the applicable court should not make an order imposing an easement over land unless it is satisfied that "all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful". The requirement that "all reasonable attempts" be made is more demanding than "a reasonable effort" to reach agreement."
Therefore, while a concerted effort to negotiate an amicable and mutually acceptable outcome is desirable before an application under this Act is made to the Court, the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur, and thus s 14E(1)(a) is deemed to be satisfied.
The next step is to assess the severity of the obstruction of all or any of the views from the applicant's dwelling as a consequence of any or all of the trees in the hedges.
Section 14E(2)(a)(ii) states:
(2) The Court must not make an order under this Part unless it is satisfied that:
(a) the trees concerned:
…
(ii) are severely obstructing a view from a dwelling situated on the applicant's land.
Three viewing points were nominated by the applicants. V1 is from the upper floor kitchen/living area, V2 is from the master bedroom, located on the middle level and V3 is from a 'granny flat/ apartment', approved under the original Development Application (DA) as a separate dwelling, which is also on the middle level.
In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and this case was referenced by Ms McKenzie in her consideration of the degree of obstruction from each viewing point.
The first three steps of the four step process are considered relevant to Part 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views; and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
In applying those principles to V1, the view in contention spans the beach, the interface between land and water, and a wide expanse of the ocean. Only T1 and T3 impact this view, and the resulting view loss is minor. V2 was not accessible at the hearing and thus neither V1 nor V2 satisfy the requirements of s 14E(2)(a)(ii).
From V3, the inflorescence of T1 is below the water view and the fronds are above, hence the water is visible past the relatively narrow trunks to the east. T2 does block the view, but the impact of both T1 and T2 is reduced by the presence of trees in neighbouring properties which also block these views.
T3 -T5 do block views extensively, and alone obstruct the prized vista along the beach, the land water interface, and the ocean, described in the first step of Tenacity as the most highly valued views.
A large proportion of the expansive water view is a side view across the respondents' yard. However, visual access to the beach and land water interface is available, in the absence of the palms, primarily across the applicants' rear boundary, and maintenance of this view, as noted in Tenacity's second step, particularly from a standing position, is entirely realistic and reasonable.
Based on the third step of Tenacity, given that the view loss from V1 is only minor, the extent of the impact for the whole of the property must be considered less than severe. I am, however, persuaded that the Council approved status of the 'granny flat/ apartment' which contains V3, raises the significance of this living area in its own right, and that the resulting view loss from V3 is severe.
Though the Court sets a high bar when considering the word 'severe', I am satisfied the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land, and the Act is therefore engaged.
As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:
(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.
In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:
(a) The hedge is located in the respondents' property, loosely parallel to their rear yard western boundary.
(b) The trees were planted in 2004, whilst or soon after the applicant's new home was being constructed.
(c) The trees have grown to their current height of about five to eight metres, since that time.
(d) The trees are not protected by Council's tree management controls under its Development Control Plan (DCP), but may well have been under previous DCPs which have applied since 2004. The site on which the palms grow is not listed as a heritage item, nor is it located in a Heritage Conservation Area.
(g) The palms are likely to make a minor to moderate contribution to biodiversity, mainly in respect to their fruit as a food source, and their canopies as habitat. They are an Australian native species, but do not have an indigenous relationship with the local ecosystem.
(h) The palms also provide only a minor to moderate contribution to the natural landscape and scenic value of the land on which they are situated. While they are very useful in softening the visual impact of the rear retaining wall for the respondents, the prevailing salt laden winds result in extensive foliage damage, thus reducing their visual and scenic contribution.
(i) The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity.
(k) Scope for pruning of palms is limited to frond and fruit removal. Height reduction is not normally an option as their fronds originate only from the terminal bud, removal of which normally causes death.
(l) While the palms contribute to landscaping and garden design, and perhaps give some protection from the sun and wind, they contribute very little to provision of privacy for the respondents. Having said this, the extent of overview into the Hickey's rear yard from Mrs Wise's residence, is so pervasive, as to be near impossible to remedy.
(m) While other trees in neighbouring yards contribute to the obstruction from V1, and to a minor portion of the obstruction from V3, trees T3-T5 are responsible for the severe obstruction from V3.
(n) considers "any steps taken by the applicant or owner of the land on which the trees are situated to prevent or rectify the obstruction." The issue of poisoning of the palms is a major factor in the longstanding deeply acrimonious relationship between the parties.
○ Whilst I left the hearing with the belief that the applicant, or someone directed by the applicant was, on the balance of probability, likely to have undertaken the poisoning, with deeper consideration of all the evidence adduced, there is sufficient ambiguity that I am not able to reach any clear finding with respect to this issue.
○ Regardless, the identity of the poisoner has no bearing on the outcome of this case, and could at best have only affected the decision regarding financial contribution required of either party to a minor extent, as the poisoning was largely unsuccessful, and the residual impact on the hedge was minimal.
[5]
Conclusion
Having considered these discretionary factors in s 14F in this context, I am satisfied that 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.
When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention in this case.
[6]
Orders
39 As a consequence of the foregoing, the orders of the Court are:
1. The application is granted.
2. The respondents are to engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to remove palms T2, T4 and T5 and the smaller stem belonging to T3.
3. The works must be undertaken in accordance with the Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016, and the Workcover NSW 'Code of Practice for the Amenity Tree Industry', 1998.
4. Any trees subsequently planting along the western boundary of the respondents' property shall be maintained at or below a maximum height of four metres above ground level, measured at the base of each tree.
5. Order (2) to be completed within 45 days of the date of these orders.
[7]
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: 06 November 2019