Land and Environment Court New South Wales

• Medium Neutral Citation: Killick v Halliday [2014] NSWLEC 1112
• Hearing dates: 17 June 2014
• Decision date: 17 June 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

The application is dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; views; trees not planted so as to form a hedge
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094; Golchin v Turner [2013] NSWLEC 113; Johnson v Angus [2012] NSWLEC 192; Wisdom v Payn [2011] NSWLEC 1012
• Category: Principal judgment
• Parties: Ms C Killick (Applicant); Ms M Halliday (Respondent)
• Representation: Applicant: Ms C Killick (Litigant in person); Respondent: Mr M Corbett-Jones (Solicitor); Respondent: Simpson Freed
• File Number(s): 20141 of 2014

Judgment

1 COMMISSIONER: The applicant' family has owned their battleaxe block in Cronulla since 1950. In 2007 the applicant moved into a new extension adjoining the original dwelling on the property. The applicant maintains that the views she once enjoyed of Gunnamatta Bay have been severely obstructed by trees growing on the adjoining property to the east.

2 The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the pruning of three trees and their subsequent maintenance.

3 The respondent purchased her property in 2007. She states that the property was heavily overgrown with unmanaged trees, shrubs, vines and weeds. While she subsequently removed most of this vegetation, the respondent disputes the availability of the applicant's views given existing vegetation growing near the shoreline of the bay that would also obstruct the applicant's views.

4 In applications under Part 2A, there are a number of tests that must be sequentially satisfied before the Court's powers to make orders under s 14D are engaged. The first of these is whether Part 2A applies to the trees the subject of the application.

5 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).

6 The application was made in regards to three trees; two Leyland Cypress planted in a raised planter box in about 2010, and a single Crepe Myrtle thought to be at least 50 years old.

7 In the week before the hearing, one of the Leyland Cypress trees was removed.

8 In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of s 14A(1)(a). At [28] His Honour states:

28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.

9 In the case now before me, had the Leyland Cypress not been removed, I am satisfied that s 14A(1) would apply to those trees. However, the Court must make findings on what is seen at the time of the hearing.

10 The question that remains is whether the remaining Leyland Cypress and the Crepe Myrtle are trees to which Part 2A applies.

11 The Court has considered this scenario on a number of occasions. In Coleman & anor v Leddy & anor [2013] NSWLEC 1094, the Court found that two groups of trees planted in two distinctly different planting events some years apart comprised two hedges. More relevantly, in Golchin v Turner [2013] NSWLEC 1138, the question was whether a single Magnolia planted much later than a group of other trees could be considered as part of the hedge.

12 In Golchin at [22], the Court found:

22 I also note Preston CJ's findings in Johnson at [43], that in essence, a single tree cannot acquire the status of being planted so as to form a hedge if, at a later date, other trees are planted near it. In my view, the converse also applies that a single tree planted at a later date, cannot acquire the status of a hedge by virtue of being planted near an existing hedge.

13 On any reading of this, it is unlikely that the Crepe Myrtle, as a single specimen planted at least 50 years ago, could ever have been considered as planted so as to form a hedge. As stated above, while the two Leyland Cypress would have satisfied this section, the removal of one tree leaves another single specimen.

14 Apart from the decades that separate their planting, the trees are very different in their form and are spatially separated and arranged in a way that, in the ordinary understanding of the word 'hedge', would not be perceived as forming a hedge (Wisdom v Payn [2011] NSWLEC 1012 at [45]). This is also considered in Johnson at [41]. The Leyland Cypress is in a raised planter box and the Crepe Myrtle is behind a wall at least 4 or more metres away.

15 Therefore I am not satisfied that Part 2A applies to these trees, however if I am wrong in this, but primarily for the purpose of enabling the applicant to present her case, the next question to be answered is whether there is a severe obstruction of a view from the applicant's dwelling as a consequence of the trees the subject of the application. That is, is s 14E(2) satisfied in the applicant's favour?

16 Section 14E(2) 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.

17 The view in question is of Gunnamatta Bay to the east; the viewing location is an open plan, ground floor, living room/kitchen.

18 The sight line to the bay is confined to a corridor along the respondent's long backyard between the respondent's dwelling and the dwelling to the north. Apart from the remaining Cypress and the northern portion of the Crepe Myrtle, there are a number of other obstructions of a clear view of the bay. The first of these is a 1.4m high masonry wall on the other side of the pool in the applicant's yard. This wall is some distance from the kitchen and also forms the common boundary. The main obstructions are two mature and established trees near the foreshore - a Eucalypt and a Golden Cypress. At best, even when standing and looking over the masonry wall, there is a very filtered view of the bay and the boats on it. The removal of one of the Cypress trees is certainly likely to have opened up a part of that distant, filtered view.

19 While the Court did not observe the view from the upper floor of the applicant's dwelling, its greater elevation would likely enable a better view of the bay. Photograph 2 in the application is presumably taken from that level. This photograph shows that even from a higher level, there are many things, other than the trees the subject of the application, that obscure the view.

20 After viewing the site and considering the submissions, I agree with the respondent's solicitor that given the failure to satisfy s 14A(1)(a), the Court has no jurisdiction to make any orders for any intervention with the respondent's trees. Even if there had been jurisdiction, I am not satisfied on balance that given the many other obstructions of the view, orders for pruning would be merited.

21 Therefore, the Orders of the Court are:

(1) The application is dismissed.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 17 June 2014