Land and Environment Court New South Wales

• Medium Neutral Citation: Telfer v Washington [2014] NSWLEC 1127
• Hearing dates: 25 June 2014
• Decision date: 25 June 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld in part: see orders at paragraph (17)

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; orders for pruning.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Johnson v Angus [2012] NSWLEC 192; Wisdom v Payne [2011] NSWLEC 1012
• Category: Principal judgment
• Parties: APPLICANT; Alison Telfer (in person); RESPONDENTS; Robert and Margaret Washington (in person)
• File Number(s): 20217 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The application

1 The same trees that provide shade, privacy and habitat can sometimes obstruct sought-after views or solar access. Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) provides some means of dealing with this issue when it arises between neighbours.

2 Ms Telfer has owned her Speers Point property since 2002, although it has been in her family since the dwelling was constructed. She has applied to the Court under Part 2A of the Act seeking orders for neighbouring trees to be pruned on an ongoing basis to restore and maintain views that she previously enjoyed from her dwelling.

3 Mr and Mrs Washington, the owners of the neighbouring property on which those trees grow, value the trees for the shade, privacy and habitat they provide and do not wish to bear the onus of ongoing pruning.

4 The Court's jurisdiction to make orders under this part of the Act has been discussed in numerous judgments. Of particular relevance is Preston CJ's judgment in Johnson v Angus [2012] NSWLEC 192, where the meanings of terms such as 'planted', 'so as to form', and 'hedge' are discussed. While some terms are clear within the Act (for instance, 'planted'), others, such as what exactly comprises a 'hedge', may be open to some degree of interpretation. Moore SC and Hewitt AC were satisfied in Wisdom v Payne [2011] NSWLEC 1012 at (45) that this term meant that "...there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered." They stated that although there does not have to be one single, perfectly straight line of trees, the impression given by the planting must be one that would be called a hedge, according to the word's meaning in common language.

5 Preston CJ in Johnson said that the trees must have been planted with the intent to form a hedge and that they must still form a hedge in the present.

Onsite observations

6 The Washingtons' property fronts The Esplanade, which, as its name suggests, runs along the edge of the lake. Ms Telfer's property is behind and uphill from the Washingtons', fronting a side street. Her verandah, dining room, kitchen and rear deck are along the southern side of her dwelling, overlooking the Washingtons' property and the lake beyond.

7 Trees T1 to T7 grow along the Washingtons' northern boundary, adjacent to Ms Telfer's property; T8 to T16 grow along their eastern boundary. The trees, and their approximate heights, are:

(1) Palm (6 metres in height)

(2) Viburnum (3.5 m)

(3) Michelia (5 m)

(4) Lilly Pilly (4 m)

(5) Orange (4 m)

(6) Lilly Pilly (4 m)

(7) Palm (2.5 m)

(8) Pittosporum (3 m)

(9) Frangipani (2 m)

(10) Melaleuca (7 m)

(11) Flowering Gum (2.5 m)

(12) Lilly Pilly (4 m)

(13) Lilly Pilly (2.5 m)

(14) NZ Christmas Tree (3 m)

(15) Bottlebrush (3 m)

(16) Blueberry Ash (2.5 m)

8 The spacings between the trees are relatively regular in places and irregular in others. Trees along the northern boundary are closer and more regularly spaced, on average one metre apart; those along the eastern boundary are more irregularly spaced, 1-4 metres apart.

9 Foliage of plants along the northern boundary overlaps, such that the continuous block of foliage could reasonably be perceived to form a hedge. Some trees along the eastern boundary are physically separate (especially T12-T14 and T16) so that they could not be so perceived. Those on the eastern boundary that do overlap (T8-T11 and T15) vary distinctly in form (one is a palm), height (2-7 metres) and habit (one is deciduous, for instance), such that they could not be reasonably perceived as a hedge. Thus, for the purpose of these proceedings trees T8-T16 do not form a hedge, do not satisfy the jurisdictional test at s 14A(1)(a), and this element of the application is dismissed. Accordingly, the Court does not have jurisdiction over any view obstruction caused by these trees.

10 The Washingtons' undisputed contention is that trees T1, T2 and T5 were present when they purchased their property. There is no evidence that those trees were planted so as to form a hedge. Therefore, according to s 14A(1)(a), the Court has no jurisdiction over those three trees.

11 The Washingtons say they planted trees T3, T4, T6 and T7 separately, at different times during the period of 2005-2006, with no particular plan other than to provide privacy and shade, to attract wildlife, and to stabilise the soil. While they may not have called it a hedge, from their own description I am satisfied that they intended to create a continual screen of foliage that provides privacy. This has formed what could be reasonably perceived as a hedge, despite consisting of several different species. In particular, T2-T6 form a continuous mass of foliage, somewhat uniform in appearance and of a relatively uniform height. They have been clipped as a hedge since they have grown there so that, although T2 and T5 predated the Washingtons and were not apparently planted so as to form a hedge, trees T3, T4 and T6 have apparently always been pruned as a hedge. Trees T1 and T7 are palms with distinctive canopies and could not be considered to be part of the hedge.

12 Following the process of elimination described above, I can only be satisfied that trees T3, T4, T6 meet the jurisdictional test at s 14A(1)(a). It is only these three trees for which the Court can make orders and therefore only these trees for which any view obstruction must be assessed.

View assessment

13 The applicant claims a view obstruction from the front verandah (V1), the dining room (V2 and V3), the kitchen (V4), the rear deck (V5) and the lounge (V6).

14 From the verandah and from the dining room there is, in my mind, a severe obstruction of the lake views. Only a small part of the lake can now be seen whereas previously, as photos demonstrate, significantly more expansive views of the lake were available. The views are obstructed from these positions by trees T1, T3, T4 and T5, of which only T3 and T4 fall within the Court's jurisdiction (see (10) to (12) above).

15 From the kitchen and the deck, if there is a severe obstruction of a view, it is caused by trees over which the Court has no jurisdiction, as found above at (8) and (9).

16 Any impact of pruning trees T3 and T4 on the Washingtons' privacy and amenity is likely to be minimal. However they are pensioners and do not wish to bear the onus of pruning. The applicant's husband, Mr Ridolfi, gave evidence that he has pruned the trees previously and that it is not too onerous. He has bought tools specifically for doing this job. Therefore it seems entirely reasonable that the applicant carry out any pruning. Pruning these two trees to remove any growth above the height of the applicant's verandah railing would sufficiently restore her view while maintaining the Washingtons' privacy. Pruning once a year should suffice. Some vigorous upright shoots will no doubt grow into the view line within 12 months, but they will not cause a severe obstruction within that timeframe.

Orders

17 Therefore the Court orders that:

(1) The application is upheld in part.

(2) Beginning 2014 and annually thereafter, in the month of July, the applicant is to prune trees T3 (Michelia) and T4 (Lilly Pilly) to a height level with, and no lower than, her verandah railing, which is some 880 mm above verandah floor level.

(3) The applicant is to dispose of all debris from these works.

(4) The applicant is to give one week's notice of these works to the respondents.

(5) The respondents may supervise these works if they so wish.

(6) The respondents must allow access for these works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 27 June 2014