Land and Environment Court New South Wales

• Medium Neutral Citation: White v Baird [2014] NSWLEC 1189
• Hearing dates: 22 July 2014
• Decision date: 11 September 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld. Orders are made for pruning at paragraph 97

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; privacy; no action taken by respondent; consideration of TPO; orders for pruning
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Haindl v Daisch [2011] NSWLEC 1145; McDougall v Philip [2011] NSWLEC 1280; Tenacity Consulting v Warringah Council [2004] NSWLEC 140; Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
• Texts Cited: Woollahra Municipal Council Tree Preservation Order 2006; Woollahra Tree Management Policy 2011
• Category: Principal judgment
• Parties: Christopher White (Applicant); Michelle Baird (Respondent)
• Representation: Wilshire Webb Staunton Beattie (Applicant); Apex Law (Respondent); Mr A Hudson, solicitor (Applicant); Ms A Hemmings (Respondent)
• File Number(s): 20181 of 2014

Judgment

The application

1 The Whites have lived in their Rose Bay dwelling since early 2008. At the outset of their occupancy, they say, they enjoyed views to the harbour, a headland at Nielsen Park and the surrounding districts. On the grounds that they have now lost those views due to the growth of trees on the neighbouring property, in particular three hedges, Mr White ("the applicant") has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for trees in the three hedges to be pruned and maintained at specified heights.

2 Ms Baird ("the respondent") owns and resides at the neighbouring property on which the trees grow. She values the trees for the privacy and amenity they provide and does not wish to prune them at all.

3 There is no dispute between the parties with regard to the jurisdictional tests at s 14A of the Trees Act. Having observed the trees I am satisfied that trees in each of the three groups are planted so as to form a hedge, and that they rise to a height of at least 2.5 metres. Therefore Part 2A of the Trees Act applies to all three groups of trees.

4 Ms Baird, however, disputes that trees in the three hedges cause a severe obstruction of a view. Furthermore, she says the Whites do not have a right to gain a view they did not have when they first arrived at their property. And finally, she argues that the combination of amenity and privacy provided by the trees outweighs any reasons there may be for pruning the trees.

Framework of the Trees Act

5 Therefore, to establish if the Court has jurisdiction over the hedges, as required at s 14E(2)(a)(ii), I must first establish if the trees are severely obstructing a view from the applicant's dwelling. This necessitates an assessment of the view, the severity of any view obstruction and the contribution of the trees to any such obstruction.

6 If I find that the trees do cause a severe obstruction of views, I must consider a range of discretionary matters under s 14F. There are several matters at s 14F of particular relevance in this case, listed below but not necessarily in the terms of s 14 F. They are:

• the location of the trees;
• the age and size of the trees when the Whites first occupied their dwelling;
• the nature and extent of the views when the Whites first occupied their dwelling;
• the timing and nature of any notification the Whites initiated with Ms Baird;
• the nature and timing of additions to the Whites' dwelling;
• the nature and extent of the views now;
• the severity of any view obstruction at the time of the hearing;
• other than the trees, what else contributes to any view obstruction;
• any steps taken by Ms Baird to deal with the issue;
• what consent would be required to interfere with the trees under Woollahra Municipal Council's Tree Preservation Order;
• the trees' contribution to privacy, landscaping, garden design and the amenity of Ms Baird's property;
• the impacts on the trees of pruning to restore any view loss; and
• if orders are to be made to interfere with the trees to remedy, restrain or prevent a severe view obstruction, whether it is a better outcome to prune the trees or to remove them and perhaps plant replacement trees.

7 I asked the parties' respective arborists, Ms Mackenzie for the applicant and Mr Swain for the respondent, both of whom provided expert evidence throughout the onsite view, to assist particularly with the final issue listed above.

8 Once I have considered these matters, if I am satisfied that the applicant's reasons to interfere with the trees outweigh the respondent's reasons not to (s 14E(2)(b)), I may make orders as empowered by s 14D. This includes orders for tree pruning, or tree removal and replacement, to remedy a view obstruction; and orders for ongoing pruning in future to prevent a view obstruction.

Timeline

9 The following timeline summarises key events.

April 1994	Ms Baird purchases her property.
Later 1994	Ms Baird plants Hedge 1 and Hedge 2 with permission of the previous owner.
Later 1994	Ms Baird moves into her property.
~2000	Ms Baird plants Hedge 3.
November 2007	The Whites purchase their property. The hedges are already more than 2.5 metres tall. The Whites say they had views to the north at this point. Ms Baird says they did not. There is no photographic evidence of the views from the two view points, although some photographs show the heights of the trees from other angles around this time.
Early 2008	The Whites begin permanently occupying their property.
April 2008	The Whites are concerned about the growth of the hedges and the potential impacts on their views. They raise their concerns about the hedges with Ms Baird.
April 2009	The Whites receive DA approval for additions to their dwelling. The footprint of the dwelling is not to increase, however the downstairs living area is to increase in size by virtue of enclosing the terrace, and a new room is to be added upstairs above this living room.
Early 2010	The Whites again raise their concerns regarding the hedges with Ms Baird.
May 2010	The Whites contact Ms Baird "on numerous occasions".
2011	The approved additions are completed.
2012-2014	The Whites make further attempts to raise the issue of hedges with Ms Baird.
Early 2014	The hedges are still not pruned.
March 2014	The application is filed with the Court.

The hedges

10 The three hedges are distinctly separate from each other. They are shown in the following diagram, which is copied here from Ms Mackenzie's report (Exhibit D). The garden includes other mature trees apart from those in the hedges.

 

11 Hedge 1 grows along Ms Baird's northern boundary, some 14 metres north of the parties' common boundary and approximately 20 metres from the applicant's bedroom window. It comprises approximately 16 individual trees, all Naylor's Blue Cypress (×Cupressocyparis leylandii 'Naylor's Blue'). Ms Mackenzie describes them as semi-mature, 12-16 metres tall and in good vigour. They are planted at regular spacings of a little over one metre between each tree.

12 Hedge 2 is planted along the common boundary, approximately a metre north of the boundary wall and seven metres from the applicant's bedroom window. It comprises seven Lilly Pillies (Syzygium sp.) that are 8-10 metres tall planted at regular spacings of approximately a metre.

13 Hedge 3 is at the south-eastern corner of Ms Baird's property, folding around the southern and eastern boundaries. It comprises approximately 22 trees, all Leighton Green Cypress (×Cupressocyparis leylandii 'Leighton Green'), described by Ms Mackenzie as 9-10 metres tall and creating a dense wall of vegetation.

14 Ms Baird says that she planted Hedges 1 and 2 in 1994, prior to moving into the property, which she had purchased in April that year. They were planted for privacy and screening.

15 Ms Baird says she planted Hedge 3 in or about 2000 or 2001, again for privacy and screening, and particularly to prevent overlooking from the pool area of what is now the White property.

16 Ms Baird says that trees in the three hedges have never been pruned.

The views

17 In the application, View 1 is described as the view to the northwest from the main bedroom and two adjoining bedrooms, taking in district views including houses, other buildings and gardens. At the onsite hearing the applicant clarified that he is not claiming that there is a severe obstruction of this view.

18 View 2 is to the north from the main bedroom upstairs. All that can be seen to the north now are trees, mostly those in Hedge 1 and Hedge 2. Looking in the same direction from other upstairs rooms, glimpses of the harbour can be seen as well as landscape views across the suburb. The Whites say these views were available to them from the bedroom, unimpeded by the hedges, when they moved into the property.

19 View 3 is from the downstairs living room through windows on the northern wall and glass doors on the eastern wall, especially those adjacent to the north-eastern corner of the dwelling. The view is across the garden to the north and northeast. Only trees can now be seen beyond the Whites' garden, mostly those in Hedge 3. The Whites say they initially had views from this part of the dwelling, prior to additions, including glimpses of the harbour, the headland at the western end of Nielsen Park, and landscape views across the suburb.

Do the trees cause a severe view obstruction (s 14E(2)(a)(ii))?

Hedge 1

20 With the benefit of the onsite hearing, I am satisfied that there is a view to be had to the north from the White's main bedroom and that trees in Hedge 1 severely obstruct that view. Although some distance from the bedroom window, the trees in Hedge 1 form a relatively solid green screen across the northern view line, extending from the lowest view across the top of the respondent's roof to above the horizon line, leaving only sky views above. There are other obstructions, including trees in Hedge 2, which is a matter I will discuss below. Nevertheless I am satisfied of the jurisdictional test at s 14E(2)(a)(ii) with regard to Hedge 1. The discretionary matters relating to trees in Hedge 1, the view and the obstruction will be considered further below.

Hedge 2

21 The Lilly Pillies in Hedge 2 do not have the same dense screen of foliage as the Cypress trees in Hedge 1, but they are closer to the Whites' bedroom window. They are in a similar view line to Hedge 1 and their proximity to the dwelling causes an obstruction of a similar area of that view. I am satisfied that, in the absence of trees in Hedge 1, trees in Hedge 2 cause a severe obstruction of a view. However trees in Hedge 1 are not absent. According to Ms Hemmings, who represents the respondent, trees in Hedge 2 cannot cause a severe obstruction due to the presence of Hedge 1. I shall discuss this further below.

Hedge 3

22 Trees in Hedge 3 form a dense screen of foliage that obstructs a view across the eastern part of the common boundary from the Whites' living room. Above this screen only the tops of some other trees and sky can now be seen. From other vantage points and as shown in photographs, views across the landscape to the water and headlands were earlier available. To what extent this view was available when the Whites began occupying their property, and to what extent other trees may obscure that view, are discretionary matters to be discussed below. I am satisfied of the jurisdictional test at s 14E(2)(a)(ii) with regard to Hedge 3.

23 In summary, having observed from other parts of the Whites' dwelling what views might be available to them, I am satisfied that desirable views would be available from the two viewpoints, View 2 and View 3, in the absence of the three hedges on Ms Baird's property. All three hedges are found to be severely obstructing a view from the applicant's dwelling.

Can the Court have jurisdiction over two hedges obstructing the one view?

24 Ms Hemmings put to the Court that, even if a view had once been available, Hedge 2 cannot be causing a severe obstruction of that view due to the existence of Hedge 1, which is taller and more distant and must itself be obstructing whatever view would be available. This is an interesting proposition made possible by the present circumstances, where two separate hedges, one on each side of the respondent's property, may obstruct the same view.

25 To determine if this is a valid argument, I shall refer to the relevant sections of the Trees Act, beginning with s 14B.

26 An owner of land may apply to the Court for orders to remedy, restrain or prevent a severe view obstruction (s 14B(b)) "if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land." All the trees are on adjoining land and, as discussed above at paragraph 3, they are all trees in groups to which Part 2A of the Trees Act applies. As I have explained earlier, I accept that trees in both Hedge 1 and Hedge 2 obstruct View 2, therefore "the obstruction occurs as a consequence of trees to which this Part applies".

27 At s 14D(1) the Trees Act outlines the Court's jurisdiction to make orders:

14D(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

(b) any view from a dwelling situated on the applicant's land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

28 In this case, if there is a severe view obstruction caused by trees in both groups of trees, Hedges 1 and 2, it is an obstruction that occurs as a consequence of trees that are on the respondent's land and that are the subject of this application. On my reading of this section, the Court may make orders "as it sees fit" to remedy the obstruction, including making orders for trees in both hedges. If Hedge 1 was located on the other side of the respondent's northern boundary, on land that does not adjoin the applicant's, the obstruction would be at least partly due to trees that are not part of the application, a matter the Court would have to consider.

29 Ms Hemming's argument must then be tested at s 14E(2)(a), which states: "The Court must not make an order under this Part unless it is satisfied that the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land". In this case, I am satisfied that, if there is a severe view obstruction, the trees concerned, being trees in both Hedges 1 and 2, are the cause of that obstruction. On my reading, there is consequently nothing to prevent me to make orders as I see fit at s 14D.

The jurisdictional test at s 14E(2)(b)

30 The test at s 14E(2)(b) requires balancing of the parties' interests as well broader considerations regarding the trees' contribution to the environment and to public amenity.

14E(2) The Court must not make an order under this Part unless it is satisfied that:

(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.

31 This requires consideration of the matters at s 14F, the most relevant of which I have set out in my own terms at paragraph 6.

The location of the trees

32 Trees in Hedge 2 are close to the common boundary and are approximately 7 metres from the Whites' bedroom windows. Trees in Hedge 1 and Hedge 3 are more distant from the respective viewpoints, but while observing this I also note that those two hedges form dense screens that prevent even a limited view through their foliage.

The age and size of the trees when the Whites first occupied their dwelling

33 The Whites bought their property in 2007 and began to permanently live there in early 2008. They have not provided any photograph evidence of views or the trees taken from the relevant viewpoints at that time. Therefore the parties rely on photographs taken from other vantage points to show possible views and heights of the trees. Some of these photographs are from promotional material for the sale of the Whites' property, before their purchase, and some from promotional material of the property to Ms Baird's north, apparently from 2006. The Whites provided several photographs taken from within their garden in early 2008.

34 In photographs from 2006 promotional material for the property to Ms Baird's north, trees in Hedge 1 are clearly visible above the roofline of the dwelling at that property. Their tops may be a few metres above the roofline. The property is downslope from Ms Baird's. The dwelling is double-storey with a flat roofline at its eastern end. Ms Baird's double-storey dwelling, apart from being upslope, has a pitched roof. The central ridgeline of her roof, shown on plans provided (for instance in Exhibit C), is therefore likely to be at least a few metres above the roofline described above. I find it unlikely that trees in Hedge 1 were above the central ridge of Ms Baird's roof at that time. When I compare their likely height at that time with their height at the time of the hearing, and considering the trees' likely growth rates over that time, I accept Mr White's contention that trees in Hedge 1 were not so tall at the start of 2008 that they obstructed the view in any significant way, let alone severely. I find believable the Whites' contention that trees in Hedge 1 were not above, or at most only slightly above, the top of Ms Baird's roofline in 2008. Trees in Hedge 1 were around 13 years old when the Whites purchased their property.

35 There is no photographic evidence of the size of trees in Hedge 2 in 2008. Therefore I rely on my own arboricultural knowledge of and experience with this species. The trees have not been pruned and would have grown in height significantly over the last six or so years. I am satisfied that they were below the view line at that time and, again, I accept Mr White's submission that the Lilly Pillies did not initially obstruct their view from their bedroom. Trees in Hedge 2 were around 13 years old when the Whites purchased their property.

36 Three photographs from early 2008, included in the "Statement of Camilla White" (Exhibit C), show the heights of trees in Hedge 3. The trees were taller than the wall to the north of the Whites' pool but most of them not as tall as the wall at the eastern end of their pool. Trees in Hedge 3 were around 7 years old when the Whites purchased their property.

The nature and extent of the views in early 2008

37 Ms Hemmings submits that the Whites are gaining a view they did not have. This would be contrary to the aims of the Trees Act, as explained by Fakes C in McDougall v Philip [2011] NSWLEC 1280 at (21) to (23).

38 Based on my findings above with regards to the heights of the trees at the commencement of the Whites' occupancy, I am satisfied that trees in the three hedges did not significantly obstruct what views were then available. There is no photographic evidence of the views from the actual viewpoints at that time. The Whites say that views from both the upstairs bedroom and the downstairs living area were broad and included the leafy suburban landscape to their north as well as parts of the harbour and headlands. Ms Baird argues that the view then was already obstructed, if not by the hedges, then by other trees in the landscape.

39 I accept Ms Baird's submission that other trees obscured large parts of the harbour. However I consider those trees, to a large extent, were part of the view, not an obstruction of it. The Whites do not contend that they had uninterrupted harbour views. They had views, it seems, that included houses, trees, headlands, water and the horizon. Parts of the horizon and small parts of the harbour can be seen in their photographs, which were taken from the same level as their living room, albeit from an outdoor position. Trees that are more distant can form part of a view rather than be an obstruction to the view. I accept the Whites' contention that they enjoyed views from their dwelling that are no longer available.

40 Referring to the photographs taken from the Whites' garden, Ms Hemmings argues that the Court has no jurisdiction over views from the garden, only views from a dwelling. The Whites do not claim view loss from the garden. The photographs were provided to indicate the heights of the trees at that time and the possible views over the trees at that time. I am satisfied that similar views were likely to be possible then from the corner of the dwelling where View 3 is now claimed to be obstructed.

The timing and nature of notification by the Whites

41 As indicated in the timeline at paragraph 9, the Whites first alerted Ms Baird to their concerns regarding the hedges soon after they moved into their property. They attempted again in 2010 and several times over the ensuing years to reach some agreement as to pruning the trees. Ms Baird has made it clear that she has not pruned the trees and does not wish to. As I will discuss further below, a significant element of Ms Baird's arguments for not pruning the trees is the negative impact this would have on the trees due to their their current sizes and the sizes of wounds left from the pruning cuts that would be required. The trees were younger, smaller and would have required smaller pruning cuts when Ms Baird was first notified of the Whites' concerns.

42 Ms Hemmings argued that the Whites' communication in 2008 indicates that their views were already obstructed then. However there is nothing in the evidence adduced regarding those communications that suggests their concerns were for an existing obstruction rather than, as the Whites claim, for the trees' potential to soon grow into their views.

The nature and timing of additions to the Whites' dwelling

43 Additions to the Whites' dwelling were approved in 2009 and completed in 2011. They did not increase the overall footprint of their dwelling. They enclosed an already partly enclosed terrace, making it part of the interior. That is now part of the large open living area that includes the lounge, dining and kitchen areas. View 3 is from this part of the dwelling. It was part of the dwelling prior to the additions but was probably used less. The living area at that time was nevertheless nearby.

44 Above the living area the Whites added upstairs bedrooms. However the main bedroom, the origin of View 2, existed prior to the works.

45 I am satisfied that both areas of the dwelling from which views are now claimed to be obstructed were part of the dwelling in 2008 and were used by the Whites at that time.

The nature and extent of the views now

46 It was apparent onsite that View 2 and View 3 are now limited to relatively close-up views of Ms Baird's hedges. Any outlook to the north beyond the hedges is not available. Ms Hemmings pointed out that the view from the bedroom to the northwest (View 1 in the application) remains, a view that is made up of suburban Rose Bay. Ms Hemmings argued that this remaining part of the view should suffice. She relied on the notion that the view could not be sliced up. For instance, in Haindl v Daisch [2011] NSWLEC 1145 at (26) Moore SC and Hewett AC found that "a view" refers to the totality of the view, "and does not permit some slicing up of that outlook".

47 However, the bedroom window faces north, toward the harbour. The northern outlook is the main view, while the view to the northwest is off to one side. It is the primary view here that has been obstructed, a view that includes parts of the harbour. The room has been designed to maximise these views. The remaining view is not the most valued view, nor is it the direct outlook from the room. Even considering what remains, I find the loss of view is significant.

The severity of any view obstruction at the time of the hearing

48 Mr Hudson says both views are now severely obstructed: View 2 from the bedroom by trees in Hedge 1 and Hedge 2; and View 3 from the living room by trees in Hedge 3. Ms Hemmings says these trees do not cause a severe obstruction, relying on the definition of "severe" as well as on relevant parts of other decisions pursuant to Part 2A of the Trees Act and the Senior Commissioner's decision in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 ("Tenacity Consulting").

49 Firstly, Ms Hemmings submits that use of the word "severely" at s 14E(2)(a)(ii) was found in Van Hoorn v Sullivan & anor [2013] NSWLEC 1111 at (34) to set "a high bar". In the same paragraph Fakes C quoted the Macquarie Dictionary definitions of "severe" and said that "therefore, the obstruction must be considerable." Having viewed the impact on the views from the bedroom and living room caused by trees in the three hedges I accept the Whites' contention that trees in those hedges cause a severe obstruction of their views.

50 In Tenacity Consulting, Roseth SC set out a process for assessing view loss and view sharing. Many decisions regarding view obstruction under Part 2A of the Trees Act have referred to that assessment process as it provides a useful guide. Ms Hemmings took us to the relevant parts of Tenacity Consulting.

51 The first step of Tenacity Consulting is to assess the nature of the views, with water views valued more highly than land views and iconic views such as the Opera House more highly than those without such icons. Ms Hemmings submits that there is no evidence that views of value were available to the Whites before the trees grew. She says it is not clear what views would be available for both View 2 and View 3 if the trees were not causing any obstruction. As discussed above, I am satisfied that views of value, including water views, are possible without the presence of the hedges.

52 The second step of Tenacity Consulting is to consider from where the views are obtained and lost. The Senior Commissioner reasoned that sitting views are more difficult to protect than those from a standing position; that protecting views across a side boundary, rather than those across front and rear boundaries, may be unrealistic. Ms Hemmings argues that both View 2 and View 3 are across the Whites' side boundary. The steps in Tenacity Consulting were in response to an application that might cause a view loss: an application for a large building with primary aims of providing space for commercial and residential use. On the other hand the primary aim of these hedges, according to Ms Baird's own statements, is to provide screening for privacy reasons. Such privacy is often sought across side boundaries and, where screening by a hedge simultaneously obstructs a view, a significant purpose of Part 2A of the Trees Act is to remedy that situation. Of course, Ms Baird's desire for privacy is also to be considered. Indeed such consideration is required by the Trees Act and follows further below. For now, I conclude that the fact that both views are across a side boundary is not one that will prevent or discourage the making of orders in this situation.

53 The third step of Tenacity Consulting is to consider from which parts of the dwelling a view is obstructed and to assess the impact of the obstruction on the whole of the property. Impacts on rooms with higher occupation rates such as living rooms might be considered more significant than those with lower occupation rates such as bedrooms.

54 Ms Hemmings argues that View 2 is from a bedroom, not a living area. The Whites say they use their bedroom for leisure with their entire family. Indeed it is larger than the average bedroom and has a large open space between the foot of the bed and the north-facing windows. This space encourages use and outlook. I accept that this is an area of the house that might be used for more than sleeping. It is also a part of the house that might have had some of the best views available from the Whites' dwelling. Therefore, in the context of the views from the entire dwelling, it deserves consideration. View 3 is from the living area, which naturally receives considerable use.

55 The fourth and final step of Tenacity Consulting is "to assess the reasonableness of the proposal that is causing the impact." Being for a development application, the circumstances in Tenacity Consulting were entirely different. No application was required here for hedges and therefore no consideration of their reasonableness required. Certainly Ms Baird's wish for privacy is reasonable, but I consider that her privacy could have been reasonably established and maintained without obstructing the Whites' views.

56 Having considered the assessment process outlined in Tenacity Consulting, I find that there is a severe obstruction of the view from both the main bedroom (View 2) and the living area (View 3).

Other than the trees, what else contributes to the view obstruction?

57 Mr Swain, arborist for the respondent, suggested that other trees in Ms Baird's garden, and others more distant in the landscape, have also grown during the time the Whites have occupied their property. He said they may obstruct much of the view. Ms Hemmings also pointed out that Mr David Grey, Tree Officer with Woollahra Municipal Council, stated in his "Arboricultural Submission" (Exhibit 3) that pruning Hedge 3 "may simply expose more tree canopies further down the slope." He refers to trees beyond Ms Baird's property, including some Phoenix Palms.

58 While trees beyond the Baird property might obstruct sections of the harbour visible from the Whites, as I found earlier I consider them to be more a part of the view than an obstruction of it. Other trees within Ms Baird's property allow filtered views through their canopies. They do not form a solid screen like trees in the hedges, which are similar to a wall in their visual effect.

What steps has Ms Baird taken to deal with the issue

59 Ms Baird has made it clear that the trees have never been pruned and she does not intend to prune them. In response to the Whites' concerns she has made no offers of compromise.

60 I note here that Ms Baird relies on the current size of the trees, and the impact that pruning would now have on the trees, as reasons not to interfere with them. However, had she responded to the Whites' initial approaches in 2008 by pruning the trees at that time, the impacts would have been significantly less. In my view, the trees could have been pruned in 2008 to prevent a view obstruction while maintaining Ms Baird's privacy, without any negative impacts on the trees.

Consent requirements under Council's Tree Preservation Order

61 A local council may attend a tree dispute hearing and make submissions when the works for which the applicant seeks orders would ordinarily (i.e., when the matter has not come within the Court's jurisdiction under the Trees Act) require Council's consent. This is explained at s 14G of the Trees Act.

14G A local council or the Heritage Council (a relevant authority) may appear before the Court in any proceedings under this Part in relation to trees if the consent or other authorisation of the relevant authority to interfere with the trees would be required, in the absence of section 6 (3), under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

62 Any orders made for trees pursuant to the Trees Act override the requirements of any Tree Preservation Order (TPO) applying to those trees (s 6(3)). However s 14F(d) makes it clear that the terms of any TPO must be considered. The TPO should influence the Court's decision but not dictate it. This is explained by Moore SC and Hewett AC in Haindl v Daisch [2011] NSWLEC 1145 where, at (103), they consider that Council's policy regarding view enhancement under a TPO should be given "significant weight" but is certainly "not determinative".

63 Both arborists stated in their reports that Hedges 1 and 3, being cultivars of Leyland Cypress, are exempt from any control under the Woollahra TPO, while trees in Hedge 2 are protected under the TPO.

64 Woollahra Municipal Council ("Woollahra") has made submissions regarding the Baird hedges. The Arboricultural Submission (Exhibit 3) of 21 May 2014 by David Grey, Woollahra's Tree Officer, outlines Woollahra's position and the status of the trees under Woollahra's Tree Preservation Order 2006 (Exhibit 4). Mr Grey inspected both properties on separate occasions during April 2014. A permit is required to prune or remove trees in Hedge 2. He says that, while a permit is not required to remove trees in Hedge 1 and Hedge 3 because of their species, a permit is required to prune them. This is because Leyland Cypress (both Hedges 1 and 3 are cultivars of Leyland Cypress) is among a list of species, at Clause (6.1)(g) of the Woollahra TPO, for which a permit is not required. Section (6.1) is headed "Removal". Section (6.2), "Pruning", includes no such list of species. Apparently then, on reading the two-page TPO alone, the trees could be removed without consent but would require consent for pruning. However, having reviewed additional material provided by the respondent, I find this is not as clear to me as it is to Mr Grey. I shall discuss this below.

65 Mr Grey notes that for most of the trees the pruning sought would require "cutting large diameter mature wood". This is generally to be avoided where possible.

66 Mr Grey states on page 3 that he "advised Mrs White that if this were a TPO application to Council she would have to nominate only one main living area from which Council would consider the achievement/recovery of views." Council's TPO 2006 was included in evidence (Exhibit 4). There is no mention of any such restriction of view assessments in the TPO, or indeed of any approach to view assessment.

67 The respondent also provided (Exhibit 5) the Woollahra Tree Management Policy 2011 ("the Policy"), which includes sections on both "Public Tree Management" (Section 2) and "Private Tree Management" (Section 3). The final paragraph of section 3.1 "The Woollahra Tree Preservation Order (TPO)" states:

Where applications are received for view pruning of private trees they will be considered in accordance with the view pruning guidelines contained in section 2.12.

68 Section 2.12 falls within the section dealing with public trees, and its terms make it clear that it was written to deal with view pruning of public trees. However, as explained above, its guidelines will guide Woollahra's assessment of view pruning applications for private trees. Section 2.12 sets down the general parameters of view pruning: that it will generally only be approved to restore views lost to a resident, not to gain views that the resident has not previously enjoyed during their occupancy of a property. Pruning that would disfigure trees is to be avoided. Section 2.12.2 states the principles of view pruning:

2.12.2 View pruning principles

Pruning of public trees for views may be considered where the trees affect significant views and view corridors.

Pruning will be managed to take into account the health and safety of the tree and to provide a balance between private and public interests.

Where repeated view pruning is assessed as detrimental to the condition of a tree, consideration will be given to removal and replacement planting which will allow views beyond, over or through the selected species.

69 Section 2.12.3 sets out the view pruning guidelines:

2.12.3 View pruning guidelines

Our guidelines for view pruning aim to maintain pre-existing views, while avoiding pruning practices which disfigure trees, while also maintaining public trees in a healthy and safe condition.

The guidelines make provision for consideration of trees growing up into a previously unobstructed view.

Guideline 1. The tree has been inspected and has received approval by Council for view pruning within the last two years.

OR

Guideline 1a. In instances where a growing tree encroaches on a previously uninterrupted view, consideration may be given to pruning to restrict the impact on the view.

Guideline 2. The applicant has provided documentary evidence such as photographs to show the previous existence of a view.*

Guideline 3. The tree is centrally located in the view corridor of the principal living area and within approximately 50 metres of the viewing point.

(Note: long-standing view pruning relationships / services on trees not centrally located to the principal living area may be maintained if not detrimental to a tree's health.)

Guideline 4. Pruning may only be approved if it will not disfigure the tree. The term "disfigure" will generally mean pruning beyond the guidelines of the Australian Standard for the Pruning of Amenity Trees.

Guideline 5. Trees located in parks may be pruned.

* Evidence of the previous existence of a view will not be accepted from new owners of a property applying for a view prune if these residents bought the property with the tree of a similar size to the size at application time.

However, as outlined in guideline 1a, property owners who have had, and recently lost, a pre existing view will receive consideration in line with the guidelines.

New owners of a property which has an established view pruning relationship with Council may continue this relationship as long as the application is in line with the guidelines.

70 At the second paragraph of Clause 3.3, the Tree Management Policy contradicts the apparent meaning of the TPO (with my emphasis):

Council will not require an application to prune or remove a tree which is included in the Woollahra's Tree Preservation Order primary list of undesirable trees which do not require any approval to prune or remove, or the secondary list of potentially problematic species which may be removed without consent if they are under 10 metres in height. These species are listed in the TPO under "Private Trees" on the Council's website.

71 The list to which Clause 3.3 refers is the list that includes Leyland Cypress. The Tree Management Policy is an overarching document that post-dates the TPO. According to the Policy then, consent is not required to prune (or remove) Hedge1 and Hedge 3. Consent is still required to prune or remove Hedge 2.

72 Relevant considerations for Hedge 2, then, are those set out in the guidelines (s 2.12.3) of the Policy. I am satisfied that the trees have grown into a previously uninterrupted view since the Whites purchased their property. The Whites have provided at least some photographs that assist me in reaching this conclusion. Although Ms Hemmings argues that pruning will disfigure the trees, I note that this would not have been the case if Ms Baird had pruned the trees when the issue was first brought to her attention. The pruning now required to restore the view is not within the guidelines of AS4373 Pruning of Amenity Trees, but as Ms Mackenzie pointed out, any hedge pruning is generally outside those guidelines. The view corridor obstructed by Hedge 2 is not from "the principal living area", but from the bedroom. However I am satisfied that the bedroom is an area designed for use beyond sleeping, and an area that was designed to make the most of the available views. I also note that the Policy's guidelines allow for view pruning "not centrally located to the principal living area" in certain circumstances.

73 The intent of Woollahra's Policy appears to be to allow view pruning where appropriate if it does not damage the trees. It appears to have been written with amenity trees in mind rather than hedges - hedges are not mentioned in the guidelines. Hedges, especially those that form dense screens, give rise to particular issues, which I do not think that Woollahra's policy addresses. Part 2A of the Trees Act, on the other hand, exists to address these issues. Leyland Cypress particularly, and Lilly Pilly perhaps to a lesser extent, are both species often sold and planted for hedging, to be pruned regularly to control their size rather than being left to develop their more natural form. Having considered Woollahra's TPO, I am still satisfied that it is appropriate to make orders for all three hedges to restore views from both View 2 and View 3.

The trees' contribution to privacy, landscaping, garden design and amenity

74 Ms Baird argues that the three hedges are part of the verdant landscape of her garden, a garden that provides an oasis in the inner city. I agree that her garden is well vegetated, cool and peaceful. Many mature and semi-mature trees contribute to its amenity. The three hedges that are subject of this application were planted by Ms Baird with the specific and stated intent of providing screening around the boundaries, using species that are suitable for hedges and for being maintained as hedges. Their function in this landscape is distinct from the remaining vegetation. Their contribution to garden design and amenity would, in my view, not be significantly diminished by pruning.

75 It was acknowledged by both arborists that the tops of the Cypress trees in Hedge 1 and Hedge 3 may appear somewhat bare and woody for a time following pruning. This would be observable from the Whites' more elevated dwelling, but only to a minor extent from Ms Baird's dwelling.

76 The three hedges provide privacy to Ms Baird's property. She says she has not raised objections to adjoining development applications to her north and south because she felt the hedges protected her from overlooking issues. Ms Hemmings pointed out that the existence of dense landscaping was considered by Woollahra during the review process of the White's development application. She argues that they cannot seek removal of something they relied on to obtain their development approval. However, as I have found above, the hedges provided screening in 2009 but are unlikely at that time to have obstructed views to the extent they now do.

77 Most importantly, the possible overlooking issues were observed during the onsite hearing from the Whites' view points as well as Ms Baird's dwelling, rear balcony and garden. For all three hedges I observed that pruning the hedges to the heights suggested by the Whites, as described in the following paragraph, would not adversely affect Ms Baird's privacy. Hedge 1 would be above her upper level eaves, entirely screening the lower dwelling to her north. The top of Hedge 2 would remain above the direct view line from the Whites' bedroom window to the balcony outside Ms Baird's bedroom. I am satisfied that privacy provided by Hedge 1 and Hedge 2 would remain even if the trees were reduced to the height of Ms Baird's roof ridge (R.L. 31.80). Hedge 3 would remain high enough to prevent any overlooking from the Whites' pool area into Ms Baird's garden.

The impacts on the trees of pruning to restore any view loss

78 To restore their views, Mr White has requested that trees in Hedge 1 and Hedge 2 be pruned to a height equivalent to a visible dark band on the television antenna atop Ms Baird's roof. Mr Hudson says the top of the ridge of that roof is at R.L. 31.80 and that the dark band is a few hundred millimetres above this. Mr Hudson says trees in these hedges should then be allowed to grow approximately 500 mm before they should be pruned again to the same height.

79 Mr White wants the trees in Hedge 3 maintained at a height equivalent to the top of the masonry wall at the eastern end of the Whites' pool (not the masonry wall to the north of the pool, which is lower).

80 Both Ms Mackenzie and Mr Swain commented on the impacts that pruning might have on the trees. Mr Swain was of the opinion that pruning as sought by the Whites would: remove the top 6 metres of trees in Hedge 1, with pruning cuts up to 200 mm in diameter; remove the top 2 metres of trees in Hedge 2, with pruning cuts greater than 50 mm in diameter; and remove less than 50% of the foliage from trees in Hedge 3, with pruning cuts up to 100 mm in diameter. Mr Swain explained what he thought would be the negative impacts, such as: a general decline in tree health and structure as the large pruning wounds would allow the ingress of fungal wood-decay pathogens; epicormic regrowth that would grow quickly and be weakly attached and prone to failure; and an ongoing requirement for pruning to control regrowth.

81 Ms Mackenzie was of the opinion that, even if the extent of pruning is as Mr Swain describes, the negative impacts on the trees would be minor. She pointed out that epicormic regrowth and the requirement for ongoing pruning are inevitable results of hedging, and that these are species that are generally chosen to be pruned as hedges. She said the regrowth would not become prone to failure because regular pruning would prevent this. She agreed that some pathogens may enter wood through the pruning wounds but was of the opinion that this would not have a major effect on the trees. She said that both species are tolerant of such pruning.

82 Both arborists agreed that the tops of the trees might appear woody and unattractive following pruning. Ms Mackenzie said this was more likely to affect the Whites than Ms Baird.

83 Ms Hemmings argued that if pruning did not immediately affect Ms Baird's privacy, the impacts described above may lead to the trees' decline over time, therefore affecting Ms Baird's privacy in future.

84 I accept that there will be some negative impacts on the trees if pruned as the Whites request. I do not think this will adversely affect Ms Baird's enjoyment of her property or her privacy. I think that the trees' lifespans will not be significantly shorter, and so I do not accept that impacts of pruning will reduce her privacy in future. As Ms Mackenzie explained, these are species that are sold for use in hedges, they have been planted as hedges, and yet they have not been maintained as hedges.

85 If the negative impacts do slightly reduce the amenity provided by the trees, or slightly shorten the period during which they provide Ms Baird with privacy, this is, as I explained above, a result of the trees not being pruned at a stage when the impacts of pruning would have been negligible. I do not think Ms Baird will suffer a significant loss as a result of pruning, but if there is a loss it is one she could have avoided through reasonable action taken at the time it was requested. If the ongoing requirements of pruning to maintain the hedges are onerous, they were foreseeable when the species of trees were selected and planted.

Would it be better to prune the trees, or remove and replace them?

86 I put to both parties and both arborists that, if I find there is a severe view obstruction that justifies orders being made, the orders could be for pruning, as sought, or for tree removal and replacement, if I found that to be a more appropriate outcome. After all, Mr Swain's evidence and Ms Hemming's submissions are that pruning will have a negative impact on the trees. However, it was agreed by both Ms Mackenzie and Mr Swain that, if pruned, the trees might continue to provide the benefits they now do for many years and the impacts of pruning would be preferable to the impacts on Ms Baird's amenity and privacy if the trees were removed. I accept that this is a preferable outcome for both parties.

87 Ms Mackenzie was of the opinion that the trees would not need any particular care following pruning, especially as the garden appears to be well irrigated and the trees' ongoing requirements for growth are likely to remain satisfied.

Conclusions

88 Having viewed the situation and considered the available evidence, I am satisfied that trees in all three hedges cause a severe obstruction of views from the Whites' dwelling, and that the obstruction has developed since they purchased their property. The views are landscape views with partial harbour views. Trees in the landscape beyond the hedges form part of that view rather than obstruct it.

89 I have considered the Woollahra TPO and find that, although Woollahra's Tree Officer has expressed a view that an application for pruning or removal would not be approved, the guidelines of Woollahra's Tree Management Policy make no specific reference to hedges. The issues here arise specifically because the trees are in hedges. Part 2A of the Trees Act was enacted to deal with these issues.

90 I find that the extent of pruning required to restore a view would not take away the screening provided by the trees. Ms Baird would retain her privacy. I do not think the negative impacts on the trees will be significant. The impacts would be even less had the trees been pruned when the Whites initially raised their concerns regarding the trees with Ms Baird in 2008.

91 The species in the hedges, especially the Leyland Cypress cultivars in Hedge 1 and Hedge 3, can grow quickly to a large size, resulting in a dense wall-like screen. When planted on suburban lots near boundaries the impacts on neighbours can be severe. It is not unreasonable to expect that they be maintained in a way to minimise such impacts.

92 To prevent a view obstruction recurring in future, the Court can make orders for ongoing pruning. This has generally been achieved one of two ways. Firstly, the initial pruning can be ordered to a specified height, with orders for ongoing pruning when the trees grow so much beyond that. Alternatively, after the initial pruning, orders can be made for pruning back to the same height at regular intervals.

93 Due to the height of trees in Hedge 1 I intend to make the orders in a way that will limit the frequency of pruning required, so as to minimise any burden in carrying out the orders. This may also limit the potential for future disagreement between the parties about the height of the trees and timing of pruning.

94 Following the first pruning, the trees may produce new growth rapidly at their tops. The orders for ongoing pruning will therefore begin 6 months later, with annual pruning thereafter.

95 To allow for annual growth, the specified pruning heights are slightly below those sought by the applicant. Following my observations on site I am satisfied that this will not significantly impact on Ms Baird's privacy.

96 The orders specify the maximum height for the trees to be pruned. There is nothing to prevent Ms Baird having the trees pruned to a lower height should she find this more practical.

Orders

97 Based on the foregoing, the orders of the Court are:

(1) The application is upheld.

(2) The respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with appropriate insurance, to prune trees in the three hedges as follows:

(a) Trees in Hedge 1 to a height of no more than R.L. 31.80, equivalent to the height of the eastern end of the top ridge line of the respondent's roof.

(b) Trees in Hedge 2 to a height of no more than R.L. 31.80, equivalent to the height of the eastern end of the top ridge line of the respondent's roof.

(c) Trees in Hedge 3 to a height of no more than 300 mm below the top of the masonry wall on the applicant's eastern boundary at its northern end (pruning height equivalent to approximately 3.6 metres above ground level near the base of the trees).

(3) The works are to be done in accordance with WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The works are generally to conform to the guidelines of AS4373 Pruning of Amenity Trees other than those sections that would prevent the pruning being ordered above.

(5) The works in (2) are to be completed within 60 days of the date of these orders.

(6) On reasonable notice the applicant is to provide any access required for the works in (2) during reasonable hours of the day.

(7) Every year during April, beginning 2015, the respondent is to engage and pay for a suitably qualified arborist to carry out the pruning in order (2) in accordance with orders (3) and (4).

(8) On reasonable notice each year the applicant is to provide any access required for the works in (7) during reasonable hours of the day.

D Galwey

Acting Commissioner of the Court

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Amendments

11 September 2014 - typographical error 96 changed to 97
Amended paragraphs: coversheet

Decision last updated: 11 September 2014