Land and Environment Court New South Wales

• Medium Neutral Citation: Liddell v Jones [2014] NSWLEC 1183
• Hearing dates: 25 August 2014
• Decision date: 05 September 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; whether trees that were not planted to form a hedge can become part of a hedge; obstruction not severe; application dismissed
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Interpretation Act 1987
• Cases Cited: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Haindl v Daisch [2011] NSWLEC 1145; Johnson v Angus [2012] NSWLEC 192; Tooth v McCombie [2011] NSWLEC 1004; Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
• Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009); Second Reading Speech, NSW Legislative Council,18 May 2010
• Category: Principal judgment
• Parties: Kenneth Liddell (Applicant); Garry Jones (Respondent)
• Representation: John Fisher Business Lawyers (Applicant); Bartier Perry (Respondent); Mr T To (Applicant); Ms M Taylor, solicitor (Respondent)
• File Number(s): 20376 of 2014

Judgment

The application

1 Among trees and landscaping, residential dwellings project from a north-facing hill in Sydney's Bayview, overlooking Pittwater. Mr Liddell (the applicant) owns and lives at a dwelling with a northerly outlook that includes Pittwater and Scotland Island, and to the northeast Refuge Cove, various headlands and more.

2 Mr Jones (the respondent) owns the property to the north of Mr Liddell. After he purchased it in 2011 Mr Jones planted bamboo along part of the common boundary with Mr Liddell's property, with the aim of gaining some privacy. Two Tuckeroo trees were already growing along that boundary.

3 Mr Liddell has applied to the Court pursuant to section 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), wanting the Court to order pruning of the trees to remove a view obstruction and regular pruning to prevent future the view obstruction. He wants the trees maintained at a maximum height equivalent to floor level on the second level of his dwelling. Mr Liddell also claims the trees obstruct his solar access, but says if the trees are pruned to restore views, that will also remove any sunlight obstruction.

4 Mr Jones wants to maintain privacy but has offered to prune the trees on the following conditions:

• that they only be pruned and maintained at around the height of the balcony railing on the second level of Mr Liddell's dwelling;
• that pruning only occurs once a year, with the costs shared between the parties;
• that if they are to be pruned more frequently that would be at Mr Liddell's expense; and
• that he should only require permission to access Mr Liddell's property for the purpose of carrying out the works in the first instance, thereafter assuming ongoing permission for access.

Framework of the Trees Act

5 Within the Trees Act are several jurisdictional tests that must be satisfied before the Court can make orders, and a range of discretionary matters to be considered if orders are to be made.

6 Some jurisdictional tests are clearly met. I am satisfied that the applicant has tried to reach agreement with the respondent (s 14E(1)(a)). The trees are on adjoining land (s 14B) and rise to more than 2.5 metres in height (s 14A(1)(b)). The bamboo has been planted so as to form a hedge (s 14A(1)(a)). Bamboo is a tree for the purpose of the Act (s 3). On these matters the parties are agreed.

7 The issues to be determined then are as follows.

• Do the Tuckeroos form part of the hedge? The applicant says they do; the respondent says not.
• Is there a severe obstruction of a view from Mr Liddell's dwelling caused by trees in the hedge? The applicant says there is; the respondent says not.
• Is there a severe obstruction of sunlight caused by trees in the hedge? The applicant says there is; the respondent says not.
• If so, do Mr Liddell's wishes outweigh the reasons not to interfere with the trees? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

8 The applicant also argues that the severity of the view obstruction should be determined at the time proceedings were commenced, rather than at the time of the hearing. Because I find that such a consideration would not alter this decision, and would not result in different orders being made, this is not an issue I need to determine in this case.

Onsite view

9 The hearing took place on site, allowing assessment of the issues listed above.

The views

10 Most of the rooms in the Liddell dwelling are designed to take advantage of the northern views.

11 The view called "V3" is on the third level, in the living area. From here there is no obstruction. Mr Liddell says the bamboo was pruned recently, after he commenced these proceedings, and there was an obstruction prior to the pruning. From here the full expanse of the view can be seen. It includes water views (Pittwater), Scotland Island, and the bays and landscape to the east of Pittwater.

12 "V2" is the view from the main bedroom on the second level. The bedroom has a large sliding glass door, through which an unobstructed view to the north is gained. To the right of this is a narrow fixed floor-to-ceiling window. Standing at the window the same view is gained. Seated on the bed the view to the northeast out that window is obstructed by the bamboo, though the northern view through the glass door is available.

13 "V1" is the view from the second-level study at the northeastern corner of the dwelling. The view through the north-facing window is mostly unobstructed. Through the eastern window the bamboo obstructs water and land views to the northeast; however the landscape view to the east is available.

The trees

14 The planted section of common boundary is aligned southeast-northwest. Two Tuckeroo trees (Cupaniopsis anacardioides) approximately 8 metres tall are planted about 5 metres apart, close to the boundary. Clumps of Slender Weavers Bamboo (Bambusa textilis var. gracilis) have been planted at regular intervals along the length of the boundary, close to the boundary.

15 The two Tuckeroo trees existed when Mr Jones purchased his property in 2010. He planted the bamboo shortly after to provide a screen for privacy, as Mr Liddell's dwelling overlooked his property. The large colour photo taken around that time (included in Exhibit 1) shows the scale of the Liddell dwelling, the presence of the two Tuckeroos and the absence of bamboo.

16 Other trees have since been planted along the southern boundary, including more Tuckeroos, but they are smaller and are not part of this application.

Do the Tuckeroos form part of the hedge?

17 The colour photograph in Exhibit 1 shows the two young Tuckeroos planted some distance from each other. Although it appears possible that they were planted to provide some visual screening between the two dwellings, they do not appear to form a hedge. During his submissions Mr To acknowledged that the Tuckeroos did not appear to have been planted so as to form a hedge. He instead relies on the argument that the bamboo was planted to form a hedge, that the bamboo now forms a hedge and that due to the continuous canopy along that part of the boundary, the Tuckeroos are now part of that hedge. He argues that the Tuckeroos have been absorbed into the hedge. He says this gives the Court jurisdiction over all trees in the hedge, including the two Tuckeroos.

18 Mr To says that in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Fakes C found that the jurisdictional tests did not need to be met for each individual tree, only for the hedge as a whole. He says the same should apply here.

19 In Grantham Holdings Fakes C found that the Trees Act's jurisdiction included a hedge where some trees were less than 2.5 meters in height, and there was some uncertainty whether one tree was planted or self-sown. Both of these issues - the height of the trees and their means of establishment - are separate to the issue here: are the trees planted so as to form a hedge? It is only this issue I must determine.

20 Ms Taylor argues that Preston CJ found in Johnson v Angus [2012] NSWLEC 192 that trees that were not planted to form a hedge cannot become part of a hedge.

21 Mr To submits that the findings in Johnson do not exclude the inclusion of earlier plantings in a hedge. He says planting with the intent to form a hedge is not required, merely that they result in forming a hedge. He argues that a more purposive approach should be taken.

22 In Johnson, His Honour gave considerable analysis to the phrase used at s 14A(1)(a) of the Trees Act, where the limited application of Part 2A is described: This Part applies only to groups of 2 or more trees that are planted so as to form a hedge. Preston CJ at (37) found:

37 I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.

23 Mr To relies on the final part of the above paragraph: "...with the result...of forming a hedge." Pondering this sentence alone may allow Mr To's argument. However His Honour has clarified his findings on this matter elsewhere in his judgment, for instance at (28) to (29) (with my emphasis):

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.

29 This requirement for the state of affairs of the trees being planted so as to form a hedge to exist at the time of planting and to continue to the present, is a product of using the simple present tense and would not result if the simple past tense or the past perfect tense had been used. Expressing the phrase in either the simple past tense (trees that were planted so as to form a hedge) or in the past perfect tense (trees that had been planted so as to form a hedge) would have required only an examination at the time of planting of whether the trees were or had been planted so as to form a hedge, and not whether that state of affairs continues to the present.

24 Further, at (43) his Honour found:

43 Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine.

25 In light of Preston CJ's findings in Johnson that there is a "requirement that the trees be planted so as to form a hedge at the time of planting" (at 28), I do not accept Mr To's submission in this regard. The Tuckeroos were apparently not planted with the intent of forming a hedge; therefore, according to s 14A(1)(a), Part 2A of the Trees Act does not apply to them.

26 Mr To argues that a purposive approach should be taken. I accept that, wherever possible, the purpose of the Trees Act should be considered when interpreting individual sections. However I am satisfied that the purpose of the Trees Act has been expressed in its wording with regard to this issue, and the Tuckeroos are not part of the hedge.

Is there a severe obstruction of a view?

27 The bamboo was pruned recently. There is no longer any obstruction of a view from the living areas on the third level (V3).

28 Mr To says the bamboo obstructs the view (V2) to the northeast through the narrow fixed window from the bed in the master bedroom. I observed that this is the case. Mr To says this obstruction is severe. Ms Taylor says the main view is north through the large glass door, is not obstructed by bamboo, and therefore the obstruction of a small part of the view cannot be regarded as severe.

29 Mr To says the bamboo obstructs the view (V1) to the northeast from the study. I observed that, depending on one's position in the room, this is the case. Mr To again says the obstruction is severe. Ms Taylor points out that, again, the main northward view through the north-facing window is not obstructed. She says that Mr Jones should not be required to maintain unobstructed views from every viewpoint of Mr Liddell's dwelling, when the iconic Pittwater views remain unobstructed from most parts of the dwelling.

30 At s 14E(2)(a)(ii) the Trees Act does not tie any jurisdictional requirement to the value of the view or its scope, nor to the part of a dwelling from where the view is enjoyed. It merely requires that trees in a hedge from a severe obstruction of a view from a dwelling. But it would be unreasonable to divide up a view from a room into all of its tiny possible elements - the view of a boat on the water through the left-hand window pane; the view of one small stretch of beach through the right-hand window pane; and so on. This does not prevent some consideration of iconic elements of a view. However when 10% of a harbour view is obstructed, and 90% remains, it would be unreasonable to only look at the obstructed part for an assessment of the severity of view obstruction. Similarly, when a view remains through 90% of the windows of a room, it would be unreasonable to assess only the view through the 10% of window area where the view is obstructed, unless that part of the view is notably more valuable. It is a view from the dwelling that should be assessed, not one small part of a view.

31 Therefore, when determining the severity of the view obstruction from the master bedroom, I will assess the outlook from the bedroom as a view, not many small views.

32 I do not find there is a severe obstruction to the view from the master bedroom. Most of the view remains unobstructed by the hedge, including the section viewed to the north through the large glass doors. The small area of the view obstructed by the bamboo is through one smaller window and is not notably more valuable than the available view. The requirement of the Trees Act for the obstruction to be severe has set a high bar that has been maintained consistently by the Court (for instance, by Fakes C in Van Hoorn v Sullivan & anor [2013] NSWLEC 1111 at (34) and by Moore SC and Hewett AC in Haindl v Daisch [2011] NSWLEC 1145 at (61) to (64)).

33 When discussing the interpretation of other issues, Mr To referred to the Second Reading Speech of the Legislative Council on 18 May 2010. The speech explains the purpose of the new jurisdiction to address sunlight and view obstructions caused by hedges. Under "Limited Jurisdiction" is the following limitation that I find relevant: "the circumstances in which a person can apply for orders in relation to trees that block sunlight and views will be limited to the most serious cases."

34 I also find some support for my finding in the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Review), which I refer to here for assistance in interpreting "severe obstruction", as permitted by s 34(2) of the Interpretation Act 1987. On pages 38-39 the Review expresses the intended scope of Part 2A of the Trees Act (my emphasis):

Strictly limited scope

Given the environmental and other benefits of urban vegetation, and the fact that this would be a new procedure, it is preferable that the circumstances in which a person could apply for orders in relation to a hedge should be limited to the most clearly problematic cases.

35 On page 39 the Review continues (my emphasis):

The Court would only have the power to hear matters regarding:

· hedges which are both high, and similar to a wall in their visual effect.

· hedges which affect people's homes (rather than their gardens or other structures on their property).

· cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if 'enjoyment of property has been severely affected by a neighbour's trees blocking out sunlight' or 'enjoyment of property has been severely affected by a neighbour's trees blocking out a view'.61

· cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase.

· hedges which are directly next door (not one or two properties over).

36 Although a limited part of the view from the bedroom is obstructed, I do not accept that Mr Liddell's enjoyment of his property is severely affected by that obstruction.

37 The degree of view obstruction from the study is more significant than from the bedroom. However, considering again the overall view from the room, rather than just one small part of it, I am not satisfied that the obstruction is severe. Significant views remain, including of Pittwater to the north.

38 Therefore, I am not satisfied that there is a severe obstruction of a view from Mr Liddell's dwelling.

Is there a severe obstruction of sunlight?

39 The application includes shadow diagrams based on varying heights for the hedge. These are useful, however the severity of the obstruction is assessed on the day of the hearing. The bamboo was pruned recently and, based on its current height, I accept that there may be some obstruction of sunlight to Mr Liddell's study window but I do not accept that it is severe.

When must the obstruction be severe?

40 Mr To submits that the view obstruction was more severe at the time Mr Liddell applied to the Court. The severity of the obstruction, he says, was reduced between the time of the application and the hearing by Mr Jones' actions in pruning the bamboo to reduce its height.

41 The jurisdictional requirement at s 14E(2)(a)(ii) of the Trees Act is that the trees concerned "are severely obstructing a view" from the applicant's dwelling. The use of the word "are" requires that the obstruction be in the present, not in the future. The Court can make orders to prevent a future obstruction (s 14D) only when the jurisdictional test at either arm of s 14E(2)(a) is satisfied in the present. For instance, Fakes C found in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 that the obstruction must exist in the present, not only potentially in the future.

42 But what is "the present"? In Tooth v McCombie [2011] NSWLEC 1004 Fakes C found at (14) that where trees had been pruned after an application was made but prior to the hearing, the jurisdictional test at 14E(2)(a) must be satisfied "at the time of the hearing." The Court has applied this interpretation several times since then.

43 Mr To argues that such an interpretation does not best promote the purpose of the Trees Act. He says the use of the present tense "are" is open to interpretation, and that an interpretation of "are" being "at the time the application is made" would be more fitting with the Trees Act's purpose. To support this view, he says that if the present is "at the time of the hearing" and trees that would otherwise meet the jurisdictional tests are pruned before the hearing, this permits respondents to unilaterally deprive the Court of the power to make orders, as has often occurred.

44 Mr To argues that Parliament could not have intended such an outcome. He refers to the amendment that resulted in the addition of s 4(4) when the Act was first reviewed. That section gave the Court the power to award compensation for property damage where a tree has been wholly removed. He says Parliament could not have intended the same problem to occur with Part 2A.

45 Mr To also points out that costs are incurred in making an application. He says that Parliament could not have intended that an applicant repeatedly make applications as pruned trees regrow, at some expense, but be denied the possibility for orders before each and every hearing.

46 Mr To therefore says that a more appropriate interpretation of "the present" would be "at the time proceedings are commenced".

47 The evidence before me regarding the extent of any view obstruction at the time these proceedings commenced is limited. Mr Liddell's application includes photographs (Exhibit C) that show the bamboo. The application was filed at the Court on 4 June 2014. Mr To submits that the bamboo was pruned in early February 2014 and again in mid-July 2014. The photographs are not date-stamped and it is unclear if they were taken before or after the application was made. They may even have been taken prior to the February pruning. However, even if they were taken at the time of the application, I am not satisfied that there existed a severe obstruction of a view at that time to the extent required by the Act. For the same reasons given above, I find that, for each of the three views, the obstruction is limited to minor portions of an otherwise extensive view and is not severe. I do not accept that the applicant's enjoyment of his property is significantly affected.

48 Because I would still find that the Court does not have jurisdiction with Mr To's suggested interpretation, I do not need to make a decision regarding the interpretation of the present tense used at s 14E(2)(a) of the Trees Act.

Discretionary matters

49 As I am not satisfied that there is a severe obstruction of views or sunlight, orders will not be made and the application will be dismissed. However, even if I were to accept the applicant's contention that the bamboo causes a severe obstruction of the view from the study, or sunlight to the study, I would be required to consider the matters at s 14F before making any orders, including s 14F(m): "anything, other than the trees, that has contributed, or is contributing, to the obstruction".

50 Mr To submits that, to sufficiently restore the view, the bamboo and the two Tuckeroo trees would need to be pruned to and maintained at approximately the same height as floor level of the study. This is approximately one metre below the top of the northern Tuckeroo. That is, according to Mr To, the top metre of the northern Tuckeroo contributes to the obstruction. Therefore a greater section at the top of the southern Tuckeroo, which is further upslope, must also contribute. The Tuckeroos are still growing and, if anything, are likely to contribute more to the obstruction in the near future.

51 The Tuckeroos are not part of the hedge. I find that pruning and maintaining only the bamboo, which would be the only plants over which the Court could have jurisdiction if I were satisfied that the view obstruction is severe, would not restore the view to the extent sought by the applicant. Therefore, if I had found otherwise on the jurisdictional question, I would still not be making orders after consideration of s 14F(m).

Conclusion

52 Only the bamboo is planted so as to form a hedge, not the Tuckeroos. Considering the overall view from each view of the application, I am not satisfied that the bamboo causes a severe obstruction of either views or sunlight. Therefore the Court's jurisdiction under Part 2A of the Trees Act is not engaged.

53 I note Mr Jones' offer to Mr Liddell for annual pruning as set out at paragraph 4 of this decision. There is nothing to prevent the parties reaching such an agreement, which would seem to address most of Mr Liddell's concerns while maintaining the trees' benefits for Mr Jones.

Orders

54 As a consequence of the foregoing, the Court orders the following:

(1) The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Amendments

05 September 2014 - Representation added
Amended paragraphs: coversheet

Decision last updated: 05 September 2014