Land and Environment Court New South Wales

• Medium Neutral Citation: Wisdom v Payn [2011] NSWLEC 1012
• Hearing dates: 17 January 2011
• Decision date: 01 February 2011
• Jurisdiction: Class 2
• Before: Moore SC; Hewett AC

Decision

Application dismissed

• Catchwords: TREES (NEIGHBOURS) - is the likelihood of injury to a person falling from a ladder when trying to prune a vine a likelihood caused by the vine; is the height test in s 14A(1)(b) to be applied to some future anticipated height of a tree; is the test of what forms a hedge subjective or subject to identifiable indicators; can creation of a view of vegetation that might predominantly be of various weed species warrant an order under Part 2A of the Trees Act; can a person who planted a tree and then subdivided the land - selling the allotment upon which the tree is located - subsequently complain that the tree severely obstructs his view.
• Legislation Cited: Interpretation Act 1987; Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Amendment Bill 2010; Trees (Disputes Between Neighbours) Regulation 2007
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280; Tenacity Consulting v Warringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: C & B Wisdom (Applicants); J & S Payn (Respondents)
• Representation: Mr J Hannaford, Hannaford Lawyers (Applicants); Ms A Johnstone, Thomsons Lawyers (Respondents)
• File Number(s): 20750 of 2010

Judgment

Introduction

1 Alcheringa Reserve (the Reserve) is a public open space in the suburb of Gymea Bay. Sutherland Shire Council (the council) manages it. Along the Reserve's southern boundary, particularly in the vicinity of Alkaringa Road where the parties in these proceedings reside, a watercourse that runs in a generally northwest to southeast direction forms the boundary of the Reserve. The Wisdoms have lived in Alkaringa Road for some 37 years. Until the early 1990s, their property extended from Alkaringa Road to the riparian zone on the southern bank of the creek forming the boundary of the Reserve.

2 In the early 1990s, the Wisdoms undertook a project that involved the construction of a duplex residential development on the rear portion of their allotment and then, over time, the subdivision and sale of both new residences to the rear. The allotment upon which the duplex development was erected, that is the generally northern portion of the Wisdoms' original landholding, has been strata subdivided (with the strata allotments oriented in a generally east-west direction). Access to the duplex development is via an axe-handle driveway along what is now the eastern boundary of the remaining residential allotment containing the Wisdoms' house. Construction of this duplex development undertaken by the Wisdoms was completed in late 1994.

3 It is pertinent to note, as will be discussed in more detail later, it was Mr Wisdom's oral evidence that, at the time of the laying of the turf for landscaping of this duplex development, a person contracted, either directly or indirectly by the Wisdoms, planted three Bottlebrush trees on the development allotment. Two of those Bottlebrush trees have no relevance in these proceedings but the third, in the middle of the front lawn area of the more southern of the two duplex allotments, forms part of the application in these proceedings.

4 Mr and Mrs Payn are the present owners of the more southern of the two duplexes and are, on the evidence, as we understand it, the second owners of this dwelling. The first owners, to whom the Wisdoms sold this dwelling, the Thompsons, undertook extensions to the dwelling which extensions included construction of a covered deck area between the southern wall of their dwelling and the boundary with Mr and Mrs Wisdoms' residual allotment and an uncovered deck area along the eastern face of the dwelling and rearranged entrance steps.

5 This construction was accompanied by landscaping involving the construction of two garden beds at right angles to each other (with one running along the outer face of the deck at the front of the dwelling and the other along the boundary fence with the Wisdoms' property). It is also relevant to note, at this time, that the garden beds are behind retaining walls and the soil surface of each of these garden beds is, generally, at the same level as the level of the deck structures. The garden bed along the face of the dwelling is, itself, punctuated by a small flight of steps leading to the deck - with these steps being in addition to the principal access steps to the dwelling.

6 A green metal fence runs along the length of the boundary between the residual Wisdom allotment and the development to its north. For approximately half of its length - the northwestern half between the Wisdom's dwelling and the covered deck area on the Payns' property - a metal lattice extension approximately 500 mm in height has been added to the top of the fence which is, itself, generally, ~ 2 m in height and follows the contour of the land on the Wisdoms' side of the fence. The slope of the fence, thus, reflects the gentle slope from northwest to southeast on the Wisdoms' side of this boundary.

7 Mr and Mrs Payn, as earlier noted, did not undertake the construction work on their property but have been responsible for the planting of some of the vegetation that is the subject of this application. As will be discussed in more detail later, Mr and Mrs Wisdom base part of their application on an assertion that the construction works earlier described as having been undertaken by the Thompsons were undertaken without development consent from the council and are thus illegal. This illegality and, particularly, the way these structures are said to alter the usage pattern of the Payns' property, was submitted by Mr Hannaford, solicitor for the Wisdoms, to be a relevant matter for our consideration.

The application

8 The Wisdoms have made an application under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a range of vegetation located on the Payns' property. In support of their application, Mr Wisdom has drawn a comprehensive diagram that formed part of their application. As we indicated we would do in the course of the proceedings, it is convenient to reproduce that diagram in order to provide a proper understanding of the explanation that follows of the various elements of the Wisdoms' application. The diagram is in the following form:

 

 

9 For the purposes of all that which follows, we adopt, as was adopted during the course of the hearing, the tree numbering system as set out in Mr Wisdom's diagram.

10 Although the orders that were nominated by the Wisdoms in their application, an application prepared prior to Mr Hannaford being instructed by them, referred to orders that were said to be sought pursuant to Part 2A of the Act, two elements of their application are founded, in fact, on Part 2 of the Act. To the extent that it was necessary to do so, leave was granted to amend those elements of the application so that they were made pursuant to s 7 of the Act rather than pursuant to s 14B. In addition, as is entirely understandable when an application is drafted by self-represented parties and done without legal assistance, the orders proposed in the application as filed were not in a properly drafted form.

11 After Mr Hannaford was instructed by the Wisdoms, as part of negotiations between Mr Hannaford and Thomsons Lawyers, solicitors for Mr and Mrs Payn, Mr Hannaford formulated a revised set of orders that were made as an open offer to Mr and Mrs Payn to settle the proceedings. However, no application was made to amend the application prior to the hearing and the hearing before us commenced on the basis of the orders proposed in the application documents prepared by the Wisdoms.

12 During the course of the hearing, Mr Hannaford was provided with an adjournment to permit him to redraft the proposed orders so that, if they were to be made, they would be in proper form. That redrafting, as it transpired, also involved in some changes to the substance of the orders from that proposed in the original application. Mr Hannaford provided a copy of the redraft of the proposed orders to Ms Johnstone, solicitor appearing for the Payns, and leave was granted, without objection, to the application being amended to reflect these redrafted proposed orders.

13 Although not put to us in this sequence, we set out below, first, the substance of the proposed orders that arise pursuant to Part 2 of the Act; second we set out those that arise under Part 2A of the Act; and, finally, we set out an order that was sought with respect to the allegedly illegal structures. This order, as was eventually conceded by Mr Hannaford, as discussed in more detail later, entirely without foundation in the Act or in any jurisdiction of the Court capable of being exercised by Commissioners of the Court.

14 We now turn to the substance of the orders that were sought. The substance (but not the precise wording of these) were as follows:

(1) With respect to the vines (T 11) that are growing through and over the metal lattice on the northwestern portion of the fence, pruning of these vines to the boundary and the maintenance of the pruning to that location. This order is sought on the basis that it satisfies the fourth test in s 10(2) of the Act in that the vines are said to be likely to cause injury to the Wisdoms;

(2) With respect to the Palm tree, drawn on Mr Wisdom's diagram as trees T 9 and T 10 but, in reality being a single, multi-trunked Palm tree, the application is for the removal of the principal trunk of the tree, being the southern upright trunk immediately adjacent to (and exerting pressure on) the dividing fence between the properties (the remaining two trunks growing in a curved direction generally away from the fence from a common base and root mass). This application is made on the basis that the first and second tests in s 10(2) of the Act are satisfied - that is that this tree has caused and is causing damage to the boundary fence;

(3) With respect to the Bottlebrush (T 17), it is said that this tree satisfies the tests in s 14A(1) and 14E(2)(a)(ii) of the Act as it is said to be part of a hedge that severely obstructs the views to the Reserve from the Wisdoms' dwelling;

(4) The group of Ti Trees, comprising trees T12 to T 15, and the Magnolia tree, T 16, at the northern end of this run of trees, these comprising the trees planted in the planter box along the face of the deck at the front of the house and broken by the steps, a matter to which we will return, are also said to satisfy the abovementioned s 14A and 14E. Although this satisfaction is said to be prospective rather than at present, we merely note that at this point but will return to it later; and

(5) The final vegetative elements with respect to which orders are sought are the group of trees, Lilly Pillys and Brush Cherrys, along the boundary fence between the Wisdoms' property and the Payns' property. Six of these trees are planted in the east-west running planter box or elevated garden bed along the fence line earlier discussed and the final one, most western of these trees, is planted in a garden bed adjacent to the Palm tree noted above and the corner of the deck area earlier described. These trees are noted on Mr Wisdom's plan as being trees T 2 to T 8.

15 The final order that was sought in Mr Hannaford's redrafted orders, the order that is entirely without jurisdictional foundation in these proceedings in any fashion whatsoever, was in the following terms:

(6) The outdoor covered area and associated timber deck constructed at number 1/18 is to be treated so as to ameliorate the privacy and acoustic impacts on number 18 as follows:

(a) Enclosed on the entire southern side by an acoustic curtain/sheeting for example, a heavy grade thick plastic sheet

(b) The timber deck surface be covered with an acoustic dampening product for example artificial grass matting.

The site inspection

16 We commenced with a site inspection accompanied by the parties and their legal representatives. Initially, we inspected the Wisdoms' property. During the course of this inspection, we observed, from various locations, the view that was available to the northeast across the Payns' property toward the Reserve. We observed this view from the following locations:

· Seated at a point in the south-western corner of the Wisdoms' living room from where Mrs Wisdom regularly enjoys the outlook through a sliding glass door and associated full height glass windows on either side;

· from the dining room table to the northeast through the door and glazing noted immediately above;

· through the northeast facing kitchen window; and

· from the covered elevated deck attached to the northern side of the Wisdom's property and set at a lower (but insignificantly so) level than the floor of the living room and the kitchen.

17 We then proceeded to inspect the Payns' property. After doing so, we returned to the Wisdoms' property for further inspections in light of what was observed from the Payns' property.

18 During the course of the second inspection of the Wisdoms' property, we were requested by Ms Johnstone to observe what the relative heights of the decks on each of the properties and what she submitted was the significant overlooking opportunity from the Wisdoms' property from and in the vicinity of the laundry door giving access to the elevated deck.

19 During the course of the site inspection, we undertook a series of measurements of the height of several of the vegetative elements contained in the elevated garden beds. These measurements, undertaken with a digital height pole, were taken at a point estimated to be the top of each of the vegetative elements - with the point being agreed by the legal representatives of the parties to be the appropriate measuring height. This was measured from both the soil surface of the garden bed and the immediately adjacent portion of the grassed area in the Payns' front yard.

20 We subsequently prepared a table of these agreed measurements and provided a copy of it to Mr Hannaford and Ms Johnstone. That table is reproduced below:

Plant Height Table

Tree No.	Ground Height (cm)	Planter Height (cm)	Species
T1			Bangalow Palm
T2	247.5	196.5	Lilly Pilly (Acmena spp)
T3	241.5	189.5	Lilly Pilly (Acmena spp)
T4	419	386	Brush Cherry (Szygium australe)
T5	414	352	Brush Cherry (Szygium australe)
T6	253.5	206	Lilly Pilly (Acmena spp)
T7	271.5	205	Lilly Pilly (Acmena spp)
T8	NA	190	Lilly Pilly (Acmena spp)
T9			Bangalow Palm
T12	183	130.5	Ti Tree (Leptospermum spp)
T13	178.5	129.5	Ti Tree (Leptospermum spp)
Not on plan	180.5	129.5	Ti Tree (Leptospermum spp)
T14	184	134	Ti Tree (Leptospermum spp)
Not on plan	183	132	Ti Tree (Leptospermum spp)
T15	187	135	Ti Tree (Leptospermum spp)
T16	238.5	185	Magnolia grandiflora ‘Little gem’

Note: Tree number corresponds to the numbering used on applicants' plan .

21 We also took a number of photographs of what was observed from what we considered were potentially relevant locations on both the Wisdoms' and Payns' properties. When we returned to the Court, seven of these photographs were provided to Mr Hannaford and Ms Johnstone and Mr Hannaford subsequently tendered these.

Jurisdictional issues

22 During the course of the site inspection, we foreshadowed to Mr Hannaford that there were a number of jurisdictional issues with respect to several of the elements raised in the application. We outlined to him the matters that we would expect him to address of this nature. They are discussed in our consideration of each of the orders that were, in the final analysis, sought. The reformulation of the orders, as earlier discussed, did not remove the necessity for consideration of these jurisdictional issues.

Consideration of the issues

Part 2 issues

23 Before turning to each of the issues with respect to which orders were sought pursuant to Part 2 of the Act, it is appropriate to set out the terms of s 10(2) of the Act as it contains the jurisdictional tests that require to be considered under this Part. The provision is in the following terms:

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

The vines

24 The order that is sought requiring pruning of the vines is based on what is said, by Mr Hannaford, to be satisfaction of the test in s 10(2)(b) in that the vines are said to be likely to cause injury to Mr and Mrs Wisdom if they endeavour to prune them. This likelihood of injury is said to arise because of a combination of the soft and sloping ground and, for Mrs Wisdom, the fact that she has an injured knee and, for Mr Wisdom, because of his age, he being 71 years old.

25 We observed the vines as having fine tendrils with minor foliage elements extending perhaps up to a metre into the airspace above the lawn area along the fence topped by the metallic lattice. This lawn area, between the elevated deck and the fence, does not contain the Wisdoms' clothesline which is located toward the north-east of their rear yard. There is no garden furniture in this grassed area.

26 First, we turn to consider whether the vines, themselves, satisfy the test in s 10(2)(b).

27 In our opinion, there is no conceivable basis, whatsoever, in suggesting that the vines themselves are likely to cause injury to any person. Any likelihood of injury that might be occasioned by any person seeking to access the vines for the purposes of pruning could only be founded on the incompetence or incapacity of the person seeking such access.

28 Although the test uses the words "any person", in our opinion this provides no legal foundation for suggesting that the test should be applied on some basis of personal capacity of a nominated individual. The provision merely, as observed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at paras 174 and following, is to make sure that an expansive geographic interpretation is applied to this test rather than the more restrictive applicant based tests contained in s 10(2)(a). As a consequence, this element of the application is without jurisdictional foundation and must be dismissed.

The fence and the Palm tree

29 Standing on the Wisdoms' deck and looking at the fence from above and at right angles to the line of the fence, damage to the fence is not immediately discernible. A similar position applies when observing the fence, closely, from the Payns' side in the vicinity of the multi-trunked palm tree. However, when standing immediately adjacent to the fence (toward the south-eastern end of the fence and looking to the northwest along the line of the top of the fence, it is apparent that, immediately adjacent to the Palm tree, there is a displacement of the top of the fence of ~ 3 or 4 cm to the south - that is toward the Wisdoms' house. There did not appear to be any displacement of the fence observable at its base.

30 As we understood the evidence given informally during the course of the site inspection, Mr Payn has recently undertaken some limited rectification activity with respect to the extent of the displacement of the top of the fence.

31 It is clear, however, that the first and second tests of s 10(2)(a) of the Act are satisfied. We also had, in evidence, a copy of a survey diagram that showed that the fence is on the boundary and is thus jointly owned by the Wisdoms and the Payns. We are therefore satisfied that we have jurisdiction to consider the proposed orders seeking removal of portion of the Palm tree and reinstatement of the fence.

32 However, the present displacement of the fence is not merely minor but is entirely negligible. It in no way impacts on the functionality of the fence or, in any discernible fashion whatsoever, impacts on the outlook from the Wisdoms' property. The damage to the fence is a classic example of what would be a proper application of the oft-cited legal maxim, de minimus non curat lex - the law is not concerned with trifles. As a consequence, although we are satisfied we have jurisdiction to make an order if we were minded to do so, as a matter of discretion, we decline to do so.

Part 2A issues

The Bottlebrush

33 This tree stands by itself in the middle of the front lawn area of the Payns' property. It is located, at its closest, ~ 4 or 5 m from the garden bed running along the front of the deck and a similar (but perhaps slightly longer) distance from the garden bed in the Payns' property along the boundary fence.

34 During the course of the site inspection, we indicated to Mr Hannaford that we would need to be satisfied that this tree had been planted as opposed to being selfsown or being an element of remnant vegetation - as one of the elements in the jurisdictional tests contained in s 14A(1)(a) was that the trees said to form a hedge to have been planted.

35 Late during the course of his submissions, when Mr Hannaford was questioned as to where was the evidence that this tree was planted, (it being conceded that all the other vegetative elements have been planted), Mr Hannaford sought and was granted leave to reopen his case to have Mr Wisdom give evidence on this point. During this evidence, Mr Wisdom revealed that, as earlier noted, this tree had been planted whilst he and his wife owned the whole of the landholding and had been planted by a contractor acting on his behalf. Whilst he was unable to recall whether he had instructed that the planting take place or if he had purchased the three Bottlebrushes that were planted, there is no doubt, whatsoever, that he adopted the plantings and certainly did not cause their removal when they had been planted or at any time during his and his wife's ownership of the development portion of their landholding. These plantings took place, on his evidence, some time during 1994.

36 The tests that are contained in s 14A(1) involve the addressing and satisfaction of a number of matters. The provision is in the following terms:

(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).

37 As a consequence, the first jurisdictional questions that we are obliged to ask, with respect to each tree - to determine whether we have jurisdiction under Part 2A to with respect to that tree - are those that arise from s 14A(1).

38 Although Mr Hannaford made submissions, (dealt with after our setting out of what we consider to be the relevant tests arising from this section) that a differing approach should be taken to several of these elements, as we will deal with after we set out these questions, we are satisfied that the questions that need to be considered are:

· Does the tree form part of a group of two or more trees?

· Was the tree planted (as opposed to being selfsown or part of remnant native vegetation)?

· If the tree is part of a group of trees and was planted as part of a group that was planted, is the effect of the planting to form a hedge?

· From what location for that tree should existing ground level be measured? and

· Is the tree one that already rises at least 2.5 m above existing ground level?

39 There then follows, if all those questions are answered in the affirmative, two further tests that need to be addressed with respect to either sunlight or views (or both) depending on the nature of the application that is made. In the present case, the application is based on impact on views from the Wisdom's property and thus the two jurisdictional prerequisites that need to be addressed are those contained in s 14E(2)(a)(ii) where we are obliged to ask ourselves:

· Does the tree impact on views from the applicants' property? and

· If there be an impact on views from the applicants' property, is that impact severe?

40 If and only if both of those questions are also answered in the affirmative, do we proceed to consider those matters contained in s 14F of the Act as part of the process of considering, as a matter of discretion, whether we should make any orders with respect to any or all of the trees in the hedge.

41 It is against that framework that we consider the Bottlebrush.

42 However, before turning to the consideration of those questions, we should deal with the submission made by Mr Hannaford, in the context of the location of the Bottlebrush tree, that the question of whether or not a tree forms part of a group should be one that is based on a perception from a particular viewpoint rather than one of mere measurement and location.

43 In this case, the Bottlebrush is located, as earlier noted, in a fashion somewhat isolated from either of the groups of trees planted in the elevated garden bed along the deck at the front of the Payns' residence or planted in the elevated garden bed along the fence dividing the Payns' residence from the Wisdoms' residence.

44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings.

45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.

46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded.

47 Having rejected Mr Hannaford's submission about a purely subjective test based on the eye of the beholder, we turn to consider the Bottlebrush.

48 As earlier noted, the Bottlebrush is planted in the middle of the lawn area at the front of the Payns' residence. It is planted in isolation from any other tree of the same or similar species. It is planted at a different level from any of the other trees that we are asked to assess as comprising either a hedge along the front of the deck or a hedge along the boundary fence. It was planted on behalf of Mr Wisdom, as earlier discussed, at the time of his development of the duplex at the rear of his then landholding and is thus significantly older than the other trees nearby. It is at a different relative height to any of the other plantings in the vicinity. It does not form part of any regular or arranged landscaping feature on the Payns' property. As a consequence of all of these factors, we are satisfied that the Bottlebrush is a sole tree in isolation and does not form any part of any group with any other trees. The further consequence of that is that a necessary jurisdictional precondition is not met by the Bottlebrush and that the application with respect to the Bottlebrush must fail.

49 However, as Ms Johnstone submitted to us, in effect, even if the Bottlebrush did form part of a hedge, a form of estoppel by conduct arises with respect to this tree because Mr Wisdom, in fact, planted the tree.

50 Although we have no doubt that our interpretation of the jurisdictional tests is the correct one and that the application concerning the Bottlebrush should be rejected on that basis, we are also satisfied that the fact that Mr Wisdom himself caused the planting of the Bottlebrush or adopted (by his conduct at the time of its planting and throughout the period he remained an owner of the land into which this tree had been planted) means that his planting of the Bottlebrush is, in itself, sufficient reason to refuse any application concerning this tree without further consideration of other matters that might weigh in favour of retention of this tree after consideration of any of the matters contained in s 14F dealing with shade; habitat or landscape values.

51 Indeed, had we not raised the question of whether or not the Bottlebrush had been planted rather than being self-sown or an element of remnant vegetation, there is nothing in the material tendered in support of the Wisdoms' application that would have revealed the planting provenance of this tree. The planting provenance of the Bottlebrush is, in our view, a material matter that should properly have been disclosed. Put bluntly, in our opinion it is hypocritical for Mr Wisdom to complain about the impact of a tree for the planting of which he was responsible as part of a development which he undertook for, presumably, profitable purposes and not to disclose the relevant facts of the planting as part of the application or in some further supplementary material.

The Ti Trees and the Magnolia

52 There is no doubt that these trees constitute two or more trees that are planted and are planted in a group. Whether or not there are two groups divided by the small flight of steps shown in the centre of the photograph reproduced below is, in our view, immaterial in the present circumstances. Given the conclusion that we have reached with respect to these trees, we do not need to determine whether they constitute one hedge or two hedges. We are, however, satisfied that the linear nature of the planting means that these plantings satisfy the characteristics of being a hedge.

 

 

53 We then turn to consider the questions that arise under s 14A(1)(b). In this regard, we are obliged to consider whether each of the trees satisfies the test expressed as rise to a height of at least 2.5 m (above the existing ground level) .

54 Mr Hannaford submitted that rise should be regarded as posing an evaluative future probability test rather than posing a present height test that has to be satisfied at the time of the hearing.

55 He submitted that, provided we were satisfied that the trees would, at some stage in the future, achieve a height of at least 2.5 m above existing ground level, this test would be satisfied. He submitted that we would, on the basis of the extent of such arboricultural knowledge we might have (either through experience and/or training), we would conclude that each of these trees would, at some stage in the future, rise above the threshold height of 2.5 m above existing ground level and thus our jurisdiction was enlivened.

56 We accept that, at some stage in the future, unless there is some human or other external intervention, each of these trees can reasonably be expected to obtain a height above 2.5 m above existing ground level, however (in this instance) existing ground level might be measured.

57 We reject the suggestion that the jurisdictional test contained in s 14A(1)(b) should be regarded as capable of satisfaction by speculation about whether and when trees, now planted but having not yet achieved a height of 2.5 m, would achieve such a height. We consider that the ordinary, plain English meaning of the words rise at least does not intend and cannot imply that they should be read as also embracing will rise at least at some future unspecified time.

58 Pursuant to s 34(2) of the Interpretation Act 1987, we are entitled to have regard to a limited range of extrinsic material to assist us in our statutory construction. In this instance, we refer, pursuant to s 34(2)(f) of the Interpretation Act, to the second reading speech on the introduction into the Legislative Assembly of the Trees (Disputes Between Neighbours) Amendment Bill 2010. This contained the following relevant passage:

In accordance with the recommendation made by the review, this bill will give the Land and Environment Court a new, strictly limited jurisdiction in relation to these hedges. To this end the bill inserts a new part 2A into the Trees Act. The object of this part is to create a mechanism by which neighbour disputes about high hedges can be heard and disposed of in a proportionate way, which, firstly, balances the competing rights of neighbours to enjoy their property and, secondly, ensures that the existence and health of urban trees can be maintained. Given the environmental and other benefits of urban vegetation, and the fact that this is a new procedure, 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. People will not be able to make an application in relation to a single tree; rather, the new part applies to groups of two or more trees that are planted to form a hedge and rise to a height of at least 2.5 metres.

59 We are therefore satisfied that as none of these trees presently rises at least 2.5 m above existing ground level, whether or not existing ground level is to be taken as the lawn or as the soil within the elevated garden bed (a matter with which we do not need to deal in this immediate context), all of these trees, as none of them rises at least 2.5 m above any possible existing ground level, can satisfy this element of the jurisdictional tests.

60 As a consequence, as it was conceded by Mr Hannaford during the course of the hearing that these trees formed a different group of trees to the trees along the boundary of the property, the application with respect to the Ti Trees and the Magnolia must also fail on jurisdictional grounds.

The Lilly Pilly and Brush Cherry trees

61 This group of trees, located along the boundary fence between the Payns' property and the Wisdoms' property comprises five Lilly Pilly trees and two Brush Cherrys. The numerical prerequisite is satisfied as, in our view, selfevidently is their planting; their grouping and their forming of a hedge.

62 The heights of each of them above both the lawn level and the raised garden bed level are set out in the table reproduced earlier in this decision.

63 As a consequence, given the recorded heights of trees T4 and T 5, we are satisfied that these trees, on either point of measurement, satisfy the tests in s 14A(1) and thus have the jurisdiction of the Court enlivened with respect to them.

64 With respect to trees T 2, T 3, T 6 and T 7, we are satisfied that, because the lawn on the Payns' side of the fence and the lawn on the Wisdoms' side of the fence in the vicinity of this elevated garden bed containing trees T 2 through to T 7 (T 8 being planted adjacent to the deck), we have concluded that, for these trees, existing ground level should be regarded as the lawn - as the structure within which these trees are planted is akin to a planter box rather than an extension to the deck level.

65 We note that, in reaching this conclusion with respect to these trees, although we did not need to express any opinion as to measuring points for the Ti Trees and Magnolia, our expression of opinion with respect to the Lilly Pillys and Brush Cherrys should not lead to any inference concerning those other trees. If it were to be necessary, on some future occasion, to make some determination about the appropriate measuring point with respect to those trees, that would be a matter for determination on that occasion rather than on this one.

66 As a consequence, the four of the trees, T 4 through to T 7 satisfy the jurisdictional test as to height. Although trees T 2, T 3 and T 8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual.

67 For instance, if a group of two or more trees were to be planted in a linear fashion so as to form a hedge but were planted with alternating species so that every second tree was one which, at maturity, was incapable of rising at least 2.5 m above existing ground level but that the second species was so capable and would dominate or engulf the more modest tree species (bearing also in mind that vines are now deemed to be trees by virtue of s 4 of the Trees (Disputes Between Neighbours) Regulation 2007), such a planting arrangement could render Part 2A of the Act inapplicable. Such an outcome is, in our view, entirely contrary to and frustrating of the purposes for which the amendments creating Part 2A were introduced.

68 As a consequence, we are satisfied that these trees, as a complete grouping, satisfy the tests under s 14A.

69 We therefore turn to consider the jurisdictional tests that are required to be satisfied pursuant to s 14B. To do this, it is necessary to discuss, in some detail, the nature of the outlook toward the northeast from the Wisdoms' dwelling. In this analysis, we confine ourselves to consideration of the outlook from the dwelling as there was no complaint in the proceedings, given the height of the metal fence between the properties, that there was any view from the north-western private open space of the Wisdoms' dwelling that was relevant in these proceedings.

70 There are, in our assessment, four elements that, to varying degrees, form part of the outlook from the Wisdoms' dwelling. These are:

· The immediate vegetation in the Lilly Pilly/Brush Cherry hedge along the boundary with the Payns' property; and

· the Bottlebrush tree earlier discussed;

· the vegetation in the riparian zone along the creek to the immediate north and northeast of the duplex development, this being, on our understanding of the survey plan and the site inspection, being almost entirely if not entirely within the boundaries of the Reserve; and

· such elements of the grassy slopes of the Reserve as are able to be seen through or around and any of the three earlier described elements.

71 The photograph shown below, taken through the window of the Wisdoms' kitchen shows the view corridor presently available over trees T 6, T 7 and T 8, past the Bottlebrush tree to the creek fringing vegetation and to portion of the grassy slope of the Reserve beyond. Tree T 5 is in the right foreground and the Bottlebrush tree can also be seen indistinctly to its left and behind it.

 

 

72 A second photograph, taken from a seated position on the Wisdoms' elevated deck, is also illustrative of the view but shows that the view corridor to the northwest of the Brush Cherrys and the Bottlebrush is far less available from this perspective.

 

 

73 At this point, we should deal with the nature of the view, at its most extensive, that would be available to the Wisdoms' if the application were to succeed with respect to the Lilly Pilly and Brush Cherry trees.

74 This assessment is undertaken against our earlier finding that there is no jurisdiction to order any interference with the size or height of the Bottlebrush tree. The consequence of that finding is that, if the two Brush Cherrys were pruned to the extent sought by Mr Hannaford on behalf of Mr and Mrs Wisdom, leading their restriction to a heighten of ~ 2.5 m above ground level on the Wisdoms' side of the fence, the view corridor along the side of the Bottlebrush would be retained but the dominant foreground view would be to the Bottlebrush itself. To the northeast, again on the basis that the two Brush Cherry trees were pruned to the maximum extent sought by the Wisdoms, we are satisfied that the canopy spread of the Bottlebrush is such that, from positions standing at the right of the Wisdoms' deck and looking to the north-east; seated at the picnic table on the deck and observing around the corner of the built structure to the immediate east of the kitchen; or standing at the kitchen window and looking north-east, such view as might be available to the east of the Bottlebrush would be dominated by the vegetation in the riparian zone of the creek on the southern boundary of the Reserve. The fall of the land in the Reserve to the east would, in our assessment, mean that only limited views into that Reserve would be available to the east of the Bottlebrush tree.

75 The vegetation in the riparian zone is, from our observation during the course the site inspection, primarily exotics in the understorey and ones that are not considered desirable or are weeds. The canopy species appeared to include Coral Trees, also considered an undesirable species. This riparian zone vegetation contributes significantly to the obstruction of views to the Reserve. There were also a number of Casuarinas and the occasional eucalypt in this vegetation but the dominant obstruction of views toward the Reserve that are either actually available along the view corridor to the west of the Bottlebrush or are potentially available along a view corridor to the east of the Bottlebrush would be disrupted by the foliage of the riparian zone vegetation.

76 Ms Johnstone submitted to us that we should conclude, if we were to adopt and apply the view assessment principles set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140 that, with respect to the quality of the views actually or potentially available from the Wisdoms' residence, we should concluded that they were, to apply her words, ordinary, unremarkable, insignificant views. Because of what she submitted was the inferior quality of the view, as we understood her submissions, she proposed that we should conclude that, even if the view were obstructed and that that obstruction was severe, the nature of the view did not warrant any intervention by us.

77 We have decided to deal with this submission, perhaps a little out of logical sequence given the further conclusions that follow, because we consider it appropriate to indicate that we reject such a proposition in this context. We reject the proposition because, although it might be correct to say that the outlook to the north from the Wisdoms' dwelling might be unremarkable, the outlook is not, in the context of the dwelling and the arrangement of its living spaces (having regard to the northerly aspect of the indoor and outdoor living spaces) to regard this view as insignificant. To the contrary, we think it self evident to conclude that, as part of the design for the duplex development, the Wisdoms sited the development to maximise the retention of their north-easterly outlook from the living areas of the retained dwelling. In our view this was an appropriate and desirable design outcome and the outlook thus retained should be regarded as significant in the context of the retained dwelling on the Wisdoms' property.

78 As a consequence, we are satisfied that that which is within the outlook from their property is not so insignificant as to warrant being discounted as constituting a view for the purposes of s 14B(b) of the Act. The consequence of that finding is that we move to consider the second of the tests that require to be addressed arising from s 14B of the Act. That is the question of whether or not the interruption to the views caused by the Lilly Pilly and Brush Cherry hedge should be regarded as severe.

79 For this assessment, it is necessary to consider the contribution, if any, that is made by each of the trees in this hedge to the interruption of these views. It is our opinion that the wording of s 14B requires us to make this assessment on a similar basis to the assessment that is required at the height of the trees - that is an assessment as at the date of the site inspection.

80 It is appropriate, therefore, to observe that trees T 2 and T 3, the most easterly of the trees in this hedge, are described by Mr Wisdom in the diagram reproduced earlier as only having a potential to obstruct views from his property. This necessarily implies that there is no present obstruction caused by these trees. We concur with this necessary implication as each of these trees presently only just rises above the top of the metal fence and the amount of this growth is significantly low. Any possible line of sight from any portion on the elevated deck on the Wisdoms' property obstructed by these trees is not to anything other than the concrete driveway elements or lawn elements on the Payns' property.

81 Trees T 4 and T 5, the two Brush Cherry trees, rise to a height of little over 4 m above the level of the lawn on the Payns' property. Although there is, possibly, some minor south to north cross fall between the lawn on the Wisdoms' property and lawn on the Payns' property, these two trees rise to a height which is at least in the vicinity of 4 m above the lawn on the Wisdoms' property and are clearly able to be seen in the foreground between the viewing points on the Wisdoms' property and the Bottlebrush beyond shown in the two photographs reproduced earlier. To a very great extent, if these trees were to be pruned to the height proposed by the Wisdoms, the view that would be reinstated by such pruning would predominantly but not exclusively be a view of the Bottlebrush.

82 As it is evident from the way the matter has been pursued on behalf of the Wisdoms that they do not consider the view of the Bottlebrush to be particularly significant or desirable (as they wish the view of that tree to be significantly reduced if we were to have had the jurisdiction to make such orders and, as a matter of discretion, were to have determined to make such orders), we do not consider that there is any basis upon which we could regard, on a subjective basis were it to be relevant, the obstruction of the Wisdoms' view of the Bottlebrush as being severe.

83 However our assessment is not one which should be personal to the Wisdoms and thus we do not proceed to conclude that, for the purposes of s 14B, the impact on their view should not be regarded as severe. It is, however, clear that the view that the Wisdoms are seeking to have maximised is the view to the Reserve. That view, at the present time, both actual and potential, can be regarded as filtered because of the extent of the understorey and canopy weed infestation in vegetation along the riparian zone of the creek within the Reserve.

84 Over objections from Ms Johnstone, we admitted two photographs tendered by Mr Hannaford that show that a local community Landcare group, in conjunction with the council, is undertaking restorative works within the Reserve. We have no other evidence, apart from these photographs, concerning these land restoration activities. The photographs are reproduced below:

 

 

85 With respect to the hand written X and arrow on the upper two of these photographs, these were not admitted as evidence - the admission as evidence was confined to that contained in the photographic images alone. Mr Hannaford submitted that we should conclude that the endeavours of these environmental restorers would include the removal of weed species in the riparian zone in the vicinity of the duplex development and within the actual or potential view corridors from the Wisdoms' property. There is no evidence in these photographs that could reasonably support such a conclusion. Apart from these photos, there is no other evidence of these activities. We cannot be satisfied, to the necessary degree of comfortable satisfaction suggested by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that any such conclusion could be drawn.

86 In addition, it is pertinent to note that to the extent that trees T 6, T 7 and T 8 might just exceed the top of the metal fence, any such vegetation from these trees above the height of the top of the fence does not presently provide any obstruction to the existing view corridor to the north between the Bottlebrush and the duplex development. At the present time, to the extent that there is an interruption to the view along this view corridor to the grassy sloped area within the Reserve, that interruption is caused by vegetation in the riparian zone of the creek rather than by any vegetation planted by Mr and Mrs Payn and certainly not by the Lilly Pilly and Brush Cherry hedge currently being considered.

87 As a consequence, as the interruption to the view to the Reserve along this corridor is not occasioned by any vegetation within our jurisdiction under Part 2A of the Act, that element must be set aside for the assessment of the severity of any interruption of views pursuant to s 14B.

88 Similarly, to the extent that the Bottlebrush interrupts views to the Reserve beyond it, for the reasons earlier set out, such interruption cannot be considered in our assessment of the severity of any interruption to the views from the Wisdoms' property.

89 Finally, relevant to this assessment, any interruption by the two Brush Cherrys of potential views to the north-east and the east must be assessed against the fact that, if those trees were to be pruned as requested, the resultant view would be virtually entirely confined to a view of the Bottlebrush and to the predominantly weed infested riparian zone.

90 Setting aside the abstract rather than subjective aesthetics of the possible reinstatement of a view of the Bottlebrush, we cannot conclude that the interruption of this view to this riparian zone weed infestation could be regarded as severe even if it were an interruption of the view of a significant component of such infestation. It is clear that significant elements of this view are made up of weed species such as privet that, as a general policy objective, have been determined to be undesirable. Some of them may, in fact, be legally proscribed but our site inspection did not include any examination that would permit such a conclusion to be drawn.

91 However, we are satisfied that a view of this particular weed infestation or a potential view of this weed infestation could not constitute a view that it is desirable to preserve or create. The corollary of that is, in our view, that the obstruction of a view of such a weed infestation is incapable of constituting a severe obstruction of a view from the Wisdoms' property.

92 The further consequence, therefore, is that the only a view that is capable of being regarded as severely obstructed from any of the viewing points on the Wisdoms' property is the view of the Bottlebrush tree and such views as are available into the grassed and driveway areas at the front of the duplex development. However, the dominant view that is interrupted by the Brush Cherrys is a view of the Bottlebrush. Both of these types of vegetation, although marginally qualitatively different as to form; flower, fruit type and formation; canopy shape and colour are, nonetheless, similar pleasant vegetative outlooks. We do not consider that there is any qualitative basis upon which we could conclude that the obstruction of the view of the Bottlebrush tree by the two Brush Cherry trees could conceivably be regarded as a severe interruption of that view.

93 As a final consequence, we are satisfied for the reasons that we have set out that there is no severe interruption of any view from the Wisdoms' property caused by any tree or trees that are amenable to any order being made by us pursuant to the Act. It therefore follows that this aspect of the application also fails.

Matter without any potential jurisdictional foundation

The covered deck area

94 When pressed, Mr Hannaford conceded that there was no jurisdictional basis under the Act upon which we could found any orders with respect to these structures. We observe, further, that there is no jurisdictional basis upon which Commissioners of the Court could make any orders of the nature sought under any statute that gives jurisdiction to Commissioners. Seeking an order of this nature, no matter how formulated, was fundamentally ill-conceived and flawed and should never have been included in any orders proposed in these proceedings by the applicants in their initial application or, perhaps more particularly, in the reformulated orders drafted by Mr Hannaford.

Conclusion

95 We have concluded that, for varying reasons, we have no jurisdiction to concerning the matters canvassed by five of the six orders sought in this application. The reasons differ in each instance, but they still necessarily and compellingly require each of those five elements of the application to fail.

96 Further, we particularly observe that the fact that Mr Wisdom himself caused the planting of the Bottlebrush or adopted (by his conduct at the time of its planting and throughout the period he remained an owner of the land into which this tree had been planted) means that his planting of the Bottlebrush is, in itself, sufficient further reason to refuse any application concerning this tree without further consideration of other matters that might weigh in favour of retention of this tree after consideration of any of the matters contained in s 14F dealing with shade; habitat or landscape values.

97 We repeat our earlier comment that, in our opinion, it is hypocritical for Mr Wisdom to complain about the impact of a tree for the planting of which he was responsible.

98 The sole element of the application that survives jurisdictional scrutiny is the application that relates to the trifling displacement of the top of the metal dividing fence between the properties where that displacement has been caused by one of the trunks of a Palm tree located on the Payns' property.

99 The extent of that displacement (less than ~ 5 cm at the top of a ~ 2m high metal fence and a displacement that is not readily discernible from any viewing point on the Wisdoms' property unless it is directly along the southeast to northwest line of the fence) is so small that, although the first two of the jurisdictional tests under s 10(2)(a) of the Act are satisfied, the extent of the damage is so negligible and has zero impact on the functionality of the fence that application of the de minimus maxim is appropriate. As a consequence, as a matter of discretion, this element of the application warrants rejection out of hand.

100 In our opinion, in summary, this application in its entirety should never have been made and, having been made, on proper consideration, should never have been brought to hearing.

Orders

101 As a consequence all of the foregoing, the orders of the Court are that:

(1) The application is dismissed; and

(2) The exhibits, other than Exhibits A, B, C and J, are returned.

**********

Tim Moore

Senior Commissioner

Phil Hewett

Acting Commissioner of the Court

Decision last updated: 24 March 2011