ABC v XYZ [2022] NSWLEC 1500

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether a tree is on adjoining land – whether the obstruction is severe – application refused Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: ABC v XYZ [2022] NSWLEC 1500 Hearing dates: 29 November 2021 Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that : (1) The application is refused. (2) The exhibits are returned, other than Exhibit A, which is retained. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether a tree is on adjoining land – whether the obstruction is severe – application refused Legislation Cited: Interpretation Act 1987, s 8 Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 4, 14A, 14B, 14D, 14E, 14F Cases Cited: Dive v Lin and Liu [2017] NSWLEC 153 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: ABC (Applicant) XYZ (Respondent) Representation: Counsel: L Sims (Applicant) L Nurpuri (Respondent) Solicitors: Not published File Number(s): 2021/236889 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders the non-publication of the names and addresses of the parties. Judgment Background to the application Prior to the final hearing in these proceedings, the Applicant applied for, and was granted, a suppression order. Throughout this judgment the Applicant is referred to as ABC and the Respondent is referred to as XYZ. The Applicant ’ s property is across the street from, and higher than, the Respondent ’ s property. The Respondent ’ s property is between the Applicant ’ s property and the Sydney CBD, the Opera House and the Harbour Bridge. The Application includes five trees (T1 – T5). T1 is an umbrella tree ( Heptapleurum actinophyllum ) planted close to the Respondent ’ s dwelling, several metres from the Respondent ’ s southern boundary. T2 is a n Argyle apple ( Eucalyptus cinerea ) on the property to the Respondent ’ s south, close to their common boundary. Trees T3 and T4 are lilly pillies ( Syzygium sp.) on the Respondent ’ s property, close to their southern boundary. T5, unidentified, grows on the Respondent ’ s property also close to their southern boundary. The history between the parties , e xtend ing back some years, includes: the Applicant ’ s objections to development of the Respondent ’ s property; applications for consent to prune T2 made by the Applicant; the Respondent ’ s refusal to allow pruning of T2 over their property; and correspondence relating to the Respondent ’ s trees obstructing the Applicant ’ s views. P ursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the Applicant has applied for orders , which I summarise here: Within 30 days of the date of these orders, the Respondent is to engage and pay for a suitably qualified arborist to remove T1 and poison its stump or, failing that, prune T1 to no higher than the Respondent ’ s dwelling. Prune T2 where it over hangs the Respondent ’ s property . Repeat any pruning ordered above, twice per year , and prevent trees T1 – T4 growing higher than the Respondent ’ s dwelling. The Respondent is to obtain at their cost any further consent required for the works ordered. The works are to be done at the Respondent ’ s expense , by a suitably qualified arborist, to relevant standards. The Applicant can engage an arborist to carry out the works above within 60 days if the works are not done by the Respondent within 30 days. The Applicant ’ s arborist can access the Respondent ’ s property to carry out works in (6). The Respondent must provide access to the Applicant ’ s arborist if needed to carry out the works. The Respondent is to reimburse the Applicant for the cost of works in (6) if that order is enlivened. The height of a ny replacement planting for T1 is to be restricted. Other orders as the Court sees fit . Framework for this decision At s 14A, Pt 2A of the Trees Act only applies to certain trees. 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). (2) Despite section 4, this Part does not apply to trees situated on Crown land. At s 14B of the Trees Act, those trees must be on adjoining land. 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the 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. Before the Court can make any orders, the jurisdictional tests at s 14E of the Trees Act must be satisfied. 14E Matters of which Court must be satisfied before making an order (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. (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, 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. The Applicant made a reasonable effort Correspondence provided to the Court demonstrates that the Applicant has raised their concerns with the Respondent over a period of time. The Respondent does not contest, and I am satisfied, that the Applicant made a reasonable effort to reach agreement with the Respondent. Pt 2A of the Trees Act does not apply to T1, T2 and T5 Tree T1 The umbrella tree (T1) is the only one of the five subject trees that is some distance from the Respondent ’ s southern boundary. It was the only tree planted within a raised garden bed next to the Respondent ’ s dwelling . Ms Sims, counsel for the Applicant, submitted that the five trees , T1 – T5, might be considered as one hedge , even if T1 is not part of a planting along the boundary. Alternatively , the trees could be considered as two hedges, with T1 and T2 forming a separate hedge, perpendicular to the boundary hedge formed by T2 – T5 (T2 being in both). I reject that proposition. While a straight line can be drawn between any two trees, this does not mean any two trees form a hedge. In Wisdom v Payn [2011] NSWLEC 1012 ( Wisdom ) , Moore SC (as his Honour then was) and Hewett AC found at [45]: “… 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.” There is nothing about the location and form of T1 that suggests it forms a hedge with the other trees. Even if its foliage overlaps that of other trees, I do not think that it “ would be perceived to be a hedge ” by a visitor to the garden. The umbrella tree ’ s location does not suggest that the person who planted it intended to form a hedge, such an intention being required by the wording of s 14A(1)(a): see Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28]. It was the only tree planted in a raised garden bed next to the dwelling. Its planting did not form a hedge. I find that the umbrella tree, T1, is not planted so as to form a hedge. Therefore Pt 2A of the Trees Act does not apply to T1 , and I can make no orders to interfere with this tree. Tree T2 At ground level, t he Argyle apple ’ s stem is situated on the property to the south of the Respondent ’ s property, adjacent to the common boundary. Part of the tree ’ s stem and some of its branches overhang the Respondent ’ s property. Ms Sims submitted that T2 forms a hedge with T3 – T5 and that the Court has jurisdiction to make orders for pruning T2. This proposition fails on two grounds. Firstly , Ms Sims submitted that past owners of these two neighbouring properties might have collaborated to plant a boundary screen, with some trees on either side of the boundary. Supporting this notion , she argued, was a row of Agapanthus that extend ed across the front boundaries of both properties. However, the absence of any evidence to demonstrate such a collaborative effort regarding the subject trees means I cannot be satisfied that T2 was planted with an y intent to form a hedge. Agapanthus at the front might have been planted by different owners than those who planted the subject trees. As with T1, T2 has little in common with trees along the Respondent ’ s side of the boundary – it is a different species with a different growth habit , and it has not been maintained as a hedge plant. Ms Nurpu ri , counsel for the respondent, submitted, and I accept, that a person walking onto the Respondent ’ s property would not perc eive T2 to be planted so as to form a hedge. I find that the Argyle apple was not planted to form a hedge, nor is it now part of a hedge, so Pt 2A of the Trees Act does not apply to this tree (s 14A(1)(a) ) . Secondly, the tree is not on the Respondent ’ s land, nor is it on land adjoining the Applicant ’ s land , a requirement at s 14B of the Trees Act. The owner of T2 might have consented to pruning works, but they are not a party to these proceedings. The requirement for the tree to be on adjoining land does not necessarily impede the application for trees T1 and T3 – T5. T he Applicant ’ s property and the Respondent ’ s property are separated by a street but , in some circumstances, they might still be considered to be adjoining: see P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 ( Baer ) at [2] – [ 7]. Front boundaries on opposite sides of the street here are parallel, but side boundaries are not perpendicular to the front boundaries. That is, the properties are rhomboi ds . If considered perpendicular to the street, the parties ’ front boundaries would not overlap and they might not be adjoining. However, if the properties were moved together in line with their side boundaries , the parties ’ front boundaries would overlap. Ms Sims submitted this to be the case. Taking the Applicant ’ s case at its highest, I accept that the Applicant ’ s and Responde nt ’ s properties could be considered to be ‘ adjoining ’ for the purposes of the Trees Act. The property on which T2 grows , however, is to the south of the Respondent ’ s property. Using the alignment method that results in the p arties ’ properties being ‘ adjoining ’ , with their front boundaries overlapping , does not result in any connection between the Applicant ’ s property and the property on which T2 grows. As Ms Sims submitted, ‘ a djoining ’ might be interpreted in various ways, depending on its context ; its meaning within the Trees Act has been explored, for instance by his Honour Chief Judge Preston in Dive v Lin and Liu [2017] NSWLEC 153 ( Dive ) . As Ms Nurpuri pointed out, Preston CJ found at [30] in Dive that the finding in Baer “… cannot be regarded as a universal statement of principle . ” The circumstances of each case will differ, and each must be assessed accordingly. I find that T2 is not on land adjoining the Applicant ’ s land. Ms Sims, aware of this likelihood , submitted that the Court should accept that T2 is part of a hedge (which I do n o t – see above) and that the hedge is principally on the Respondent ’ s land. Ms Sims relie d on s 8(b) of the Interpretation Act 1987 , which states: “ In any Act or instrument … a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form …” . Ms Sims argued that s 4(3) of the Trees Act , which states “ For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land ” , refers therefore to the trees that from a hedge, including T2, and that the hedge is principally on land that adjoins the Applicant ’ s land. I reject this proposition. While the Court has found that not every tree in a hedge needs to meet the height requirement of s 14A(1)(b) of the Trees Act (see Wisdom at [66]) , the context and wording of that section differs, importantly, from the context and wording at s 14B. At s 14A (1)(b), the height requirement of “ at least 2.5 metres ” refers to the preceding subject: “ … groups of 2 or more trees ” . The requirement can refer to the group, as applied in W isdom . At s 14B, on the other hand, it is trees (not groups of trees) that must b e “… situated on adjoining land. ” Similarly, s 4(3) refers to ‘ the tree ’ being “ principally on the land ” , not a hedge or a group of trees. Had I found that T2 was part of a hedge, I do not accept that the Court could make orders for T2 on the basis that the hedge is principally on the Respondent ’ s land. T2 is neither planted so as to form a hedge, nor situated on land adjoining the Applicant ’ s land. No orders can be made for T2 in these proceedings. Tree T5 T5 is near the Respondent ’ s front boundary to the east of the other trees. It has not been identified. It is described in the Applicant ’ s Claim Det ails (Form G) as possibl y Magnolia figo and approximately 1.7 metre s tall. Despite Ms Sims ’ submissions regarding its relationship to the other trees, I find it is not planted so as to form a hedge. The intent at the time of planting is unknown. The tree has different foliage, growth habit and appearance to nearby trees. It is some distance from trees T3 and T4, which are planted close to each other. Pt 2A of the Trees Act does not apply to T5, so no orders can be made for this tree . Pt 2A applies to T3 and T4 Trees T3 and T4 are both lilly pillies , a species commonly used for hedges and for screening. They are planted close together, within the Respondent ’ s property, next to the side boundary. They are more than 2.5 metres tall. Ms Nurpuri submitted that , as photographs show (Tab 3 accompanying Exhibit 2) , the trees were planted with a gap between them and their stem sizes are different, so they may have been planted at different times. I noted that the tree s ’ foliage has closed the gap between them, so that they form a single canopy. The difference in stem size is minor, not significant. T3 and T4 appear to me to form a hedge of two trees, and it seems reasonable to assume that they were planted to form a hedge , so Pt 2A of the Trees Act applies to these trees. Trees T3 and T4 do not severely obstruct a view The orders sought by the Applicant include , firstly, pruning or removal of T1 and pruning of T2 . This is because it is these two trees that the Applicant has found to obstruct views. Subsequent orders sought by the Applicant then include pruning of trees T1 – T4 in future to prevent them growing taller than the Respondent ’ s dwelling. The orders sought for trees T3 and T4, being the only trees I find to fall within the jurisdiction of Pt 2A of the Trees Act, do not arise from a current view obstruction. In these proceedings, s 14E(2) (a) prevents the Court from making an order unless I am satisfied that the trees concerned (T3 and T4) are severely obstructing a view from the Applicant ’ s dwelling . Trees T3 and T4 are not severely obstructing a view from the Applicant ’ s dwelling . The application refers to view obstruction from 11 viewing positions from various rooms and locations throughout the Applicant ’ s dwelling. All submissions made by the Applicant to the Court, supported by numerous photographs , referred to view obstructions caused by only T1 and T2, in particular the flower spikes and uppermost branches of T1 and foliage of T2. Looking from the Applicant ’ s property, t he hedge formed by T3 and T4 is behind T1 and T2. Trees T3 and T4 do not obstruct a view , either because they are not tall enough to obstruct the view, or because the view is obstructed by trees T1 and T2 closer to the Applicant ’ s property. It follows that the Court cannot make orders for T3 and T4. The severity of any view obstruction caused by T1 and T2 was the subject of evidence and submissions. Because I have found there is no view obstruction resulting from trees that are planted to form a hedge on the Respondent ’ s property, I do not include here my consideration of the view obstruction. Orders As a result of the foregoing, the Court orders that: The application is refused . The exhibits are returned, other than Exhibit A, which is retained. ………………………………. D Galwey Acting Commissioner of the Court ********** Amendments 04 October 2022 - Correction to typographical errors at [24]. 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: 04 October 2022