Land and Environment Court New South Wales

• Medium Neutral Citation: Lawrence v Spencer & anor [2011] NSWLEC 1060
• Hearing dates: 8 March 2011
• Decision date: 08 March 2011
• Jurisdiction: Class 2
• Before: Fakes C; Hewett AC

Decision

Application to prune hedge upheld in part.

• Catchwords: TREES [NEIGHBOURS]; hedge; obstruction of views; pruning of some plants ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mrs B Lawrence (Applicant); Mr G Spencer and Ms M Taylor (Respondents)
• Representation: Mrs B Lawrence (Applicant in person); Mr G Spencer (Respondent in person)
• File Number(s): 20816 of 2010

Judgment

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

1 COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in East Gosford against the owners of trees growing on an adjoining property.

2 The applicant is seeking the pruning of all trees and shrubs, except a large Eucalypt, growing inside the rear and side fences of the respondents' property to the height of the fence [stated by the applicant to be 1.8 m] and then maintained at that height.

3 These orders are sought on the basis that the trees severely obstruct views of Brisbane Water from the rear deck and kitchen of the applicant's property. The applicant contends that this view has, until recently, been available since her parents purchased the property about 40 years ago. The applicant is seeking restoration of those views.

4 The applicant's property is currently tenanted. The respondents have owned their property for about 3 months. The application was originally made against the previous owner of the respondents' property.

The trees

5 The majority of the trees subject to the application are Brush Cherries ( Syzygium australe ) that were planted in 2007 prior to the demolition of an older dwelling and the construction of a new dwelling on what is now the respondents' property. We note from photographs, and confirmed by the applicant, that several trees, including a Mango and a Queensland Silver Wattle, were already established prior to the 2007 plantings.

6 There are effectively three hedges at the rear of the respondents' property. Hedge 1 is planted along the northern side boundary fence that adjoins the applicant's property. There are 12 Brush Cherries in this group. To the north-west/ upslope of these are a number of larger established trees that are not in contention. Numbering the Brush Cherries from north-west to south-east (upslope to down-slope), trees 1 and 2 are adjacent to the applicant's kitchen window. Towards the south-eastern corner along this row is the Mango tree.

7 Trees 3 and 4 in this row were measured from both properties using a height stick. These are 2 of the taller trees in hedge 1. Tree 3 is about 4.3 m and tree 4 is about 4 m tall. There is a degree of variation in the height of the plants forming this hedge and the trees do not appear to have been pruned. The timber dividing fence was measured at just under 2 m.

8 Hedge 2 is along the rear/eastern boundary of the respondents' property. There are in excess of 15 Brush Cherries in this row. Numbering the trees from north-east to south-west, trees 1 and 2 are to the south-east of the Mango and have been somewhat suppressed by it. The next tree to the south-west is the Queensland Silver Wattle. This was measured at 4.6 m high. The seventh Brush Cherry was measured at 4m and is one of the tallest in the central portion of hedge 2. The Brush Cherries continue to the south-western corner of the respondents' property.

9 Approximately mid-way along hedge 2 and forward of it is a group of 3 Ivory Curl trees ( Buckinghamia celsissima ), a Lemon Myrtle ( Backhousia citriodora ) and a Hakea sp. This group of trees was planted at the same time as the Brush Cherries. Also proximate to these trees but growing on the adjoining property to the south-east/ rear of the respondents' property is a large remnant Eucalypt, an Agonis flexuosa , and a Leyland Cypress. These three trees are substantially taller than the Brush Cherries and other nearby trees on the respondents' property.

10 Hedge 3 is another row of Brush Cherries along the south-western side boundary of the respondents' property.

The view

11 The principal viewing areas are the kitchen windows on the southern corner of the applicant's dwelling and the rear deck adjacent to the living area on the south-eastern faade of the house. The applicant's property is in an elevated location.

12 The principal views are to the east, south-east, south and south-west. The views to the east and south-east are largely unobstructed views to Carolyn Bay and Erina and to the southeast to the hills to the behind Green Point.

13 The views to Brisbane Water are those in contention. These views are oblique views in a relatively narrow arc from south-south-east (SSE) to the south-south-west (SSW). These views are effectively two view corridors with the view directly to the south interrupted by the remnant Eucalypt and two other established trees on the property to the south-east of the respondents' property.

14 We note from photographs taken in 2007 and tendered by the applicant, that the SSE view at that time included a relatively narrow strip of Brisbane Water with the foreground comprising the roof of the dwelling to the south-east of the respondents' property. In 2007, the most significant view to Brisbane Water was that to the SSW framed by the remnant Eucalypt and other more distant established trees further to the south-west.

15 The respondents contend that the applicant's dwelling is down-slope of their own and is effectively off the edge of the hillside. In this regard they contend that the applicant's primary view is directly to the east/ south-east and not the oblique view to the south/ SSW which is limited by the topographical position of the applicant's property. The respondents contend that the view lost by the applicant is not significant and that it is unreasonable to expect a view to stay the same over a period of forty years.

Relevant background

16 In 2006 a development application (DA) was lodged with Gosford Council for the construction of a new dwelling on what is now the respondents' property.

17 According to the applicant, she and her mother made submissions regarding the likely impacts of the proposed development on views generally to the south.

18 In a letter from Gosford Council tendered as part of exhibit A, the applicant's mother is advised that consent was granted to the DA subject to conditions imposed to address the concerns over loss of views. The relevant conditions are as follows:

1. Proposed ground floor terrace (deck) is to remain open and unobstructed in order to maintain the primary views to the south from No 49 [...the applicant's property].

2. Ground floor terrace (deck) balustrade shall be an unobstructed open compliant design to facilitate view corridors to the south from the adjoining property.

3. Sub-floor area of the ground floor rear terrace (deck) is to remain open and unobstructed in order to maintain the primary views to the south for No 49.

19 We note that while the conditions do not specifically mention any landscape elements they clearly address the issue of view loss. We consider the view loss to the 'south' as described in the conditions to be those views more accurately identified in this judgment as those to the SSW as this is the only view corridor capable of being affected by the construction of the dwelling.

20 During the hearing, the applicant stated that the previous owner of the respondents' property told her the trees would be maintained at the height of the fence. By this we assume the Brush Cherries and other trees planted in 2007.

21 The applicant also stated that she asked the agents managing the sale of the respondents' property to advise any prospective buyers of the importance of the view corridor as well as the application made to the Court. The respondents contend they were unaware of these issues when they purchased the property.

Jurisdictional tests

22 We are satisfied that the Brush Cherries in all 3 hedges as well as the central group planting described in [9] satisfy the jurisdictional test in s 14A of the Act in that the trees are planted so as to form a hedge, rise to a height of at least 2.5 m and are on appropriately zoned land.

23 While the Mango and the Queensland Silver Wattle were planted prior to the Brush Cherries and there is reasonable separation between them, they have since been incorporated into hedges 1 and 2. In applying a purposive interpretation of the Act, we consider these trees also meet s 14A(1)(a). This clause states:

(1) This Part applies only to groups of 2 or more trees that:

(a) are [our emphasis] planted (whether in ground or otherwise) so as to form a hedge, ...

24 As the Mango and the Queensland Silver Wattle are planted and are part of a group of 2 or more trees and form a hedge we have the jurisdiction to consider these trees.

25 The remnant Eucalypt and the other large trees are on a property not subject to this application and therefore the Court has no jurisdiction to make any orders with respect to these trees; we note that no orders are sought for these trees.

26 Of importance is s 14E(2), this states:

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

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

27 In this matter we are satisfied that some of the trees do severely obstruct a view from the applicants' dwelling and therefore s 14E(2)(a)(ii) is satisfied and the Court can then proceed to consider s 14E(2)(b) and the balance between the interests of the applicants, the trees and the respondents. This requires the Court to consider s 14F of the Act.

28 The relevant clauses in s 14F are:

(a) The trees are wholly located on the respondents' property.

(b) The applicant's dwelling existed before any of the trees were planted.

(c) The trees have grown to their current height of greater than 2.5 m during the period the applicant has owned the land.

(e) There was no evidence to suggest that the trees were planted as a condition of development consent for the respondents' property. However we note the conditions of consent relating to the design of the dwelling and the retention of a view corridor - see [18-19].

(g) The trees will contribute to the local ecosystem and to biodiversity.

(h) The trees contribute to the scenic value of the land on which they are growing.

(i) The trees have limited value to public amenity.

(k) The Brush Cherries, Ivory Curl trees and Hakea are species that can be pruned without unduly affecting their health or appearance. Although Lemon Myrtles are generally grown as trees, the specimen in question is of a size where pruning can be tolerated.

(l) The trees do contribute to the privacy and general amenity of the respondents' property. With respect to privacy, the respondent stated the trees provide privacy to neighbouring properties including the applicant's tenants.

(m) With respect to things other than the hedges obstructing the view, we have previously noted the impact of the remnant eucalypt and associated trees. There are also other trees on more distant properties that also obstruct the views from the applicant's property.

(n) No pruning appears to have been undertaken by any party.

(p) The trees are all evergreen species.

(q) The nature and extent of the view obstructed and the nature of the remaining view. As previously stated, there are largely unobstructed and quite expansive views to the east and south-east that include water and distant vegetated hills. Established trees on another property obstruct the view to the south. Of the view corridors in contention, the one to the SSW is considered the most significant.

(r) The parts of the dwelling from which the views are obstructed are the rear deck and the kitchen windows; areas expected to be frequently occupied.

Findings

29 After viewing the site and considering the evidence, we have concluded that Brush Cherries 3-8 in hedge 1, the Silver Wattle and Brush Cherries 3-10 in hedge 2, and the group planting of Ivory Curl, Lemon Myrtle and Hakea do severely obstruct the views to Brisbane Water in the two view corridors to the SSE and the SSW and therefore s 14E(2)(a)(ii) is satisfied with respect to these trees.

30 We find that the other trees in hedges 1 and 2 and all of the trees in hedge 3 do not severely obstruct views from the applicant's dwelling and as such no orders can be made with respect to those trees as they do not satisfy the test in s 14E(2)(a)(ii). We also consider trees 1 and 2 in hedge 1 to be important in providing privacy for the respondents and the applicant's tenants.

31 In balancing the needs of the parties and the trees as required by s 14E(2)(b), we have considered the relevant clauses in s 14F. We have concluded that the applicant has quality views to the east and south-east that include the desirable element of water. However, we also accept that the views to Brisbane Water are highly valued.

32 Of the two view corridors to Brisbane Water we find that the corridor to the SSE is compromised by roofs and established vegetation on other properties; including other trees in the middle distance. We consider pruning of the respondents' trees to re-open that view to be of limited benefit relative to the extent to which that view is already compromised. We also note that this is unlikely to be the view considered by Gosford Council in drafting the conditions of consent reproduced in [18] as the construction of the respondents' dwelling had no impact on that view corridor.

33 We consider the view to the SSW to be capable of some restoration and the pruning of some of the trees on the respondents' property is appropriate. We accept that the visual integrity of the hedges will be somewhat compromised however this is insufficient to refuse the application in its entirety.

34 We consider fence height to be unreasonably low given the need to maintain some privacy between neighbours. We have determined a height of 3m, measured from ground level within the respondents' property, to be sufficient to restore the SSW view corridor for the applicant and maintain reasonable privacy and amenity for the respondents. In our opinion, the health and viability of the nominated trees will not be adversely affected by this degree of pruning.

35 Therefore as a result of the foregoing, the Orders of the Court are:

(1) The application to prune and maintain the trees and shrubs in the respondents' property is upheld in part.

(2) The respondents are to prune and maintain the following trees to a height not exceeding 3m measured from ground level within the respondents' property:

(i) Brush Cherries 3-8 in hedge 1 (numbered from north-west/ upslope to south-east/ down-slope.

(ii) Brush Cherries 7-10 (numbered from north-east to south-west) in hedge 2.

(iii) The group of 3 Ivory Curl trees, 1 Lemon Myrtle and 1 Hakea towards the centre of hedge 2.

(3) The initial pruning is to be carried out within 30 days of the date of these orders.

J Fakes

Commissioner of the Court

P Hewett

Acting Commissioner of the Court

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Decision last updated: 16 March 2011