Land and Environment Court New South Wales

• Medium Neutral Citation: Brown v Xie & anor [2013] NSWLEC 1039
• Hearing dates: 28 February 2013
• Decision date: 07 March 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Clancy v Bell [2011] NSWLEC 1017; Drewett v Best [2010] NSWLEC 1305; Haindl v Daisch [2011] NSWLEC 1145; Johnson v Angus [2012] NSWLEC 192; McCallum v Riodan & anor [2011] NSWLEC 1009; McDougall v Philip [2011] NSWLEC 1280; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140; Wisdom v Payn [2011] NSWLEC 1012; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Jenny and Geoffrey Brown (Applicants); Chong Xie and Chen Xiue (Respondents)
• Representation: Applicants: Mrs J & Mr G Brown (Litigants in person); Respondents: Ms W Xie (Agent)
• File Number(s): 21172 of 2012

Judgment

1 COMMISSIONER: The applicants in these proceedings purchased their Pymble property in October 2008. In September 2009, the respondents purchased a property at the rear of the applicants' property.

2 The real estate brochure produced for the sale of the respondents' property includes a photograph of the backyard, at the rear of which is a group of mature and substantial conifers (this photograph is reproduced and included in this judgment as Attachment A).

3 The applicants are seeking orders for the pruning of these conifers to a height of 4m and their subsequent maintenance at that height on the basis that these trees severely obstruct views from their dwelling. The application is made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

4 The respondents do not wish to prune the trees as they value the trees for their appearance and amenity. They also contend that the trees were fully mature and considerably tall when the applicants purchased their property and that there is no tangible loss of enjoyment of a view of any note or significance as a consequence of the trees.

5 In applications under Part 2A, there are a number of jurisdictional tests that must be satisfied before the Court can consider what, if any, orders should be made for any interference with any of the trees the subject of the application.

Are the trees planted so as to form a hedge?

6 The first of these jurisdictional tests is satisfaction of s 14A(1). This 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).

7 The application identifies six trees, however with the benefit of the site inspection, the trees the subject of the application are a row of five mature conifers comprising three species: from east to west the trees are three Cupressus sempervirens 'Stricta' (Italian Cypress), a golden cultivar of Cupressus macrocarpa (Golden Cypress) with multiple stems, and a variegated cultivar of what is probably a Juniperus chinensis (Chinese Juniper). The multi-stemmed Golden Cypress is identified as T6, T2 and T3 in the application; however, there is only one trunk at ground level.

8 The three Italian Cypress have been planted 1 metre apart; the Golden Cypress is about 1.5 m to the west and the Juniper about 2.5m to the west of the Cypress. The Golden Cypress is significantly larger than the other trees.

9 The Act does not define the word 'hedge'. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed.

10 'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge".

11 As the trees existed well before either party purchased their properties, there is no opportunity to question the person who planted the trees and therefore to determine the purpose for which they were planted.

12 I am satisfied on the basis of the species, spacings and arrangement that the three Italian Cypress are planted so as to form a hedge. In putting the applicants' case at its highest, I am prepared to accept that the Golden Cypress and the Juniper form another hedge. It may also be possible that the trees form a single hedge and that the variation in height and bulk is simply a function of the difference in growth rates between the species. All three species are commonly used for hedging purposes and there is no requirement in the Act that the 'hedge' be of a single species. I am content that impression is that the grouping of plants would be perceived as a hedge. Therefore I am satisfied that the Court has the jurisdiction to proceed and consider the severity of the impact of these trees on views from the applicants' property.

Do the trees severely obstruct a view from the applicants' dwelling?

13 The next relevant jurisdictional test is found in s 14E(2). This states:

(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.

14 The applicants contend that the trees severely obstruct views from the north facing windows of their dwelling. When questioned as to what view was obscured, the applicants stated that they could not see the central portion of district views of the surrounding residential area, especially a distant tree line of mostly Eucalypts. The areas from which they say the view is severely obstructed are (from west to east) on the upper level - bedroom 1, bedroom 2, dining room (sitting and standing views), kitchen, and study. From the ground/lower floor, the downstairs lounge room. The applicants had also nominated the rear yard and pool however the Act stipulates that the view must be from a dwelling.

15 In relation to the applicants' dwelling, the trees are some 13m to the north and roughly in the central portion of their view. They contend that in the 5 years they have lived there, the trees, in particularly the Italian Cypress, have increased in height and width and that that part of the view to the north-northwest has been lost as a result. In their application they state that the Italian Cypress were less than 4m in height when they moved in and not visible. They consider they are now about double that height. Similarly, they contend that the Golden Cypress has more than doubled in width in the last 5 years.

16 At the hearing I was taken to each of the nominated rooms and asked to observe the view from each of the windows. The group of conifers is clearly a significant element in the general landscape within the immediate viewing area, particularly from the bedroom windows. The applicants were particularly concerned about the impact of the conifers from some of the north facing seats at their dining room table as the conifers are to the north of this room.

17 The views of the conifers from the kitchen and the study are more oblique views to the northwest, with the views to the distant tree-line being relatively unobstructed from these rooms (unless one is standing and only looking to the northwest).

18 From each of the upstairs rooms, I observed the distant tree line and district views to the northwest of the conifers; these trees were more clearly seen to the northeast. The views to the northwest are somewhat more constrained by the presence of other trees and shrubs on the applicants' property and on other adjoining properties to the northwest.

19 District views from the lower level are inevitably more limited because of the position of the room and the applicants' own screen planting along the back fence.

20 In considering the evidence, I am not satisfied that any of the trees the subject of this application severely obstruct any view from the applicants' dwelling. The trees are certainly part of the landscape, and part of the view. From the uncontradicted evidence provided by the respondents, the trees were clearly substantially the same size in 2009 as they were when the applicants purchased their property some eleven months earlier.

21 Using the fence height as a general guide, the Italian Cypress trees were probably at least 7m tall in 2009. With the expertise I bring to the Court, I consider it highly improbable, and virtually impossible, for these trees to have grown several metres in one year or even in the 5 years during which the applicants have resided in their dwelling. Indeed, all of the trees in question are mature and growing very slowly. The trees will certainly have grown over the years but I find it highly unlikely that any of them have grown to the extent claimed by the applicants. The applicants have not provided any evidence to demonstrate the size of the trees, or the views that were available to them when they moved in; the only evidence I have of the size of the trees at about that time are photographs provided by the respondents.

22 The applicants are seeking the reduction in height of these trees to 4m. The Act is not intended to provide an applicant with views or sunlight they did not originally have (see McDougall v Philip [2011] NSWLEC 1280). If any pruning were to be ordered, it would only be sufficient to restore the view that was available to an applicant at the time they purchased/ occupied their dwelling - but only if the jurisdictional tests in s 14E(2) are met (which in this case they are not).

23 In regards to the view, the Court's interpretation of 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At paragraph [26], the Court states:

However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring a separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

24 For example, in this matter, it would be unreasonable to order any intervention with the trees based on one or two seats at the applicants' dining room table.

25 Therefore after considering the applicants' position, I am not satisfied that there is a severe obstruction of any view from the applicants' dwelling (s 14E(2)(a)(ii)).

26 However, if I am wrong in this, as a matter of discretion and in considering the relevant matters in s 14E(2)(b) and therefore s 14F, I am not satisfied that the severity and nature of the obstruction is such that the applicants' interests outweigh any other interests.

27 In this regard, the trees contribute to the amenity and privacy of the respondents' property and to the general character of the landscape of the locality; pruning the trees to the height sought by the applicants would cause irreparable damage to their form and have a detrimental impact on their health. Considering some of the qualitative assessment criteria in the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140: the views are not of iconic structures or water views, but general suburban views; while some of the views are from living areas and the kitchen, there is little obstruction of those views as a consequence of the trees; and, views from bedrooms are less important than views from living rooms.

28 Therefore the application in regards to obstruction of views is dismissed.

Sunlight

29 During the hearing the applicants stated that they had also made an application about severe obstruction of sunlight to windows of their dwelling as a consequence of the conifers. In reviewing the application and claim form (exhibit A), the check box for 'sunlight' is not ticked, nor are any of the questions specifically relating to obstruction of sunlight answered. However, the claim form states "all vantage points facing north have severe [sic] obstructed views and loss of sunlight and loss of airflow & breeze due to the 6 conifer trees planted as a hedge". Correspondence between the parties recounted in the claim form appears to concentrate on the shading of the applicants' pool and backyard as a consequence of the trees.

30 The applicants were given leave to include severe obstruction of sunlight as part of their application, however, it was indicated that neither the respondents nor the Court had the opportunity to formally consider this element of the application. The respondents did not object and indicated that they had undertaken some investigation of the likelihood of obstruction of sunlight by their trees of the applicants' property. The respondents contend that this is unlikely.

31 The afternoon of the hearing was overcast. The applicants provided no shadow diagrams or photographs to support their contentions. As stated above, the trees are some 13m away from the back of the applicants' dwelling; the tallest tree is estimated to be about 12m tall. There is virtually uninterrupted sky to the east/northeast. During the hearing the applicants voiced concerns over inadequate ambient light. The Court has accepted the word 'sunlight' to be 'direct sunlight' rather than just daylight (see Drewett v Best [2010] NSWLEC 1305 at [17]). The conifers are to the north where the sun is likely to be higher in the sky. The study on the upper layer has a covered awning of some metres extending from it; the upper and lower floors have a covered awning of at least 1m beyond the windows. The Act does not apply to shading of gardens or pools (see Clancy v Bell [2011] NSWLEC 1017).

32 On the evidence before me, I am not satisfied that there is a severe obstruction of sunlight to windows of the applicants' dwelling as a consequence of the trees the subject of the application. That is, s 14E(2)(a)(i) is not met. However, as with s 14E(2)(a) (ii), even if I am wrong in this, as a matter of discretion, I am not satisfied that the severity and nature of the obstruction is such that the applicants' interests outweigh any other matters that suggest the undesirability of interfering with the trees by making any orders under this Part.

33 The applicants raised the issue of obtaining further evidence to support their claim about obstruction of sunlight. Even if an application is refused, it is possible for an applicant to make a fresh application but only if the circumstances have changed since the Court determined the earlier application (see Hinde v Anderson & anor [2009] NSWLEC 1148). While I'm unaware of any fresh applications in matters that have already been determined under Part 2A, there are a number of cases involving Part 2 applications that give some indication of what the Court considers to be fresh evidence (see McCallum v Riodan & anor [2011] NSWLEC 1009, and Zangari v Miller (No 2) [2010] NSWLEC 1093).

Orders

34 On the basis of the forgoing, the Orders of the Court are:

(1) The application is dismissed.

______________________________

J Fakes

Commissioner of the Court

ANNEXURE A

Decision last updated: 07 March 2013