Land and Environment Court New South Wales

• Medium Neutral Citation: Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107
• Hearing dates: 21 April 2011
• Decision date: 12 May 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; two trees ordered for removal

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of iconic view
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128; Wisdom v Payn [2011] NSWLEC 1012; Tenacity Consulting v Warringah [2004] NSWLEC 140; Tooth v McCombie [2011] NSWLEC
• Category: Principal judgment
• Parties: Mr D Ridley (Applicant); The Owners Strata Plan No. 60662
• Representation: Mr A Perkins (Solicitor for the Applicant); Colin Biggers and Paisley; Mr D Loether (Solicitor for the Respondent); Bartier Perry
• File Number(s): 21039 of 2010

Judgment

1 COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property at 13 Le Vesinet Drive, Hunters Hill against the owner of palm trees growing between Blocks B and C Strata Plan 60662 - Pulpit Point, 2-10 Le Vesinet Drive.

The application

2 The applicant seeks the following orders:

(1) The removal and disposal of the Palm Trees situated between the access area between Lots 2-10 and Lots 11-20 of SP60662.

(2) That any further planting of trees or vegetation at the relevant location be limited to plants and trees to the height of the adjacent approved building (at maturity).

3 These orders are sought on the basis that the trees severely obstruct views across Fern Bay of the Harbour Bridge and parts of the harbour from his dwelling. The original application identified 13 palms in dispute. The applicant subsequently limited the scope of the application to 6 palms marked T1 - T6 on a survey plan by Proust & Gardner Consulting Pty Ltd dated 24.02.2011. However, the respondents' arborist Mr P Castor of the Tree Wise Men surveyed the trees on 21.03.2011 and noted the omission of two trees. Proust & Gardner Consulting Pty Ltd produced an amended survey dated 20 April 2011 to include the missing trees. An application to amend the application to apply to trees 1-8 was allowed.

4 The trees are Washingtonia robusta (Mexican Fan Palm) planted in terraced garden beds between the garages at the rear of Buildings B and C and close to the Le Vesinet Drive frontage. The respondent's buildings step down the slope towards the water. The respondent's property is located across the road and directly opposite the applicant's dwelling. In the matter of P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 it was held that trees located across a public street are on 'adjoining land'; the parties agreed that the Court has jurisdiction to hear the matter.

5 The applicant states that he purchased his property in August 2006. The house was tenanted from August 2006 to May 2008. From the applicant's affidavit (exhibit A) it appears he moved into the property in mid 2008. The affidavit states at [16] At the time of purchasing and moving into the property, the Trees were present on the Respondent's property and measured approximately 7 metres .

6 At the time of purchase, the applicant contends his property had expansive easterly views of Sydney harbour which included a view of the Harbour Bridge and the city skyline. These views were available from the breakfast/kitchen area on level 1 (V1 in the application), the level 1 balcony (V2), the lounge room on level 1 (V3) the upstairs master bedroom and level 2 balcony.

7 The applicant's position is that the views of the Harbour Bridge are now obscured completely or partially from all three nominated viewing points on level 1 as a result of the trees subject to the application.

8 The applicant's evidence includes correspondence between the parties concerning the palms going back to December 2007. I note that part of the affidavit and a significant portion of the correspondence from the applicant refers to the palms harbouring possums and vermin such as rats that may attract snakes. These issues were not raised during the hearing but are raised and disputed in the affidavits of the owners and occupiers of the nearby units. Whether or not these creatures are present has little relevance to proceedings pursuant to any part of the Trees Act apart from considerations under s 14F(g).

The site inspection

9 The hearing commenced on site. Seven owners and occupiers of the respondent property made oral submissions but relied on their affidavits (Exhibits 1-8) for more details. Mr Philip Sutton, Parks and Landscape Coordinator for Hunters Hill Council attended but relied on his statement of evidence (Exhibit 9).

10 The position of the owners and occupiers who prepared affidavits can be summarised as follows:

• The trees contribute to the landscape and design of the garden and their removal would reduce the amenity of their properties; the landscape is a major feature of the estate.
• The trees contribute to privacy, shade, wind protection and the scenic value of the estate.
• Palms are an appropriate choice given the dimensions of the open space between the buildings.
• The visual amenity of the palms is important when viewed from the street and from the water; they soften the built form.
• Fears that the success of the application could create a precedent.
• Concerns about the accuracy of some of the correspondence from the applicant.

11 The location and numbering of the trees was verified with assistance from Mr Castor. The survey plan by Proust & Gardner Consulting Pty Ltd dated 20 April 2011 was accepted as being the most accurate plan. The trees on the plan were numbered in accordance with the numbering system used in the Tree Wise Men report (see Annexure A - location diagram).

12 The views from the nominated viewing points within the applicant's property were noted. The actual views were compared to photographs tendered by the applicant and those contained in the Tree Wise Men report (Exhibit 8). I note that from the left portion of V1 part of the northern pylon of the Harbour Bridge is visible as is the whole of the CBD. From V2 the view includes the full CBD to the Anzac Bridge, part of the top of the bridge and the full view of Goat Island. From V3, amongst other things, the southern pylon and the top of the bridge are visible. The views from upstairs were observed but nominal viewing points 4 and 5 are not part of the application. There are clear views of the bridge from upstairs. At least two of the palms subject to the application, trees 1 and 3 are located in the central part of the view lines between V1-V3 and the Harbour Bridge.

13 It was raised at the site inspection that the palms had been recently pruned. It was alleged that this work had been done to assist the respondent's case. The affidavits of several of the owners and occupiers of the respondent property state that the removal of dead fronds is a routine occurrence. I assign little weight to the applicant's assertions as the Court is reliant on the situation at the time of the hearing.

The framework for consideration

14 The application is made under Part 2A of the Act. Section 14A(1) states:

(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).

15 Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.

16 Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located.

17 Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1).

18 Of significance 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.

19 If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D.

Submissions

The applicant's position

20 Mr Perkins for the applicant contends that council documents tendered in the applicant's bundle illustrate that the principles of view sharing were of significance when approval for the Pulpit Point development, including the landscaping, was given by council. He submits that the height restrictions and the low pitched and flat roofs of the unit blocks allowed views across them from the dwellings on the western side of Le Vesinet Drive. Similarly, the separation between the buildings was to create view corridors. He contends that the approved landscape plans showed suggested species for proposed "gully" plantings between buildings with height limits to 5m and therefore the intent was to enable view sharing. In further support of this contention he referred to an internal memo from Mr Sutton on 04.09.97 suggesting an alternative to the suggested street tree planting of Jacaranda partly on the basis of their mature height and impact on views.

21 In turning to the jurisdictional tests in s 14A, it is accepted that the trees are planted and all rise to a height of at least 2.5 m. As to whether or not they are planted 'so as to form a hedge' Mr Perkins relies on the finding in Wisdom v Payn [2011] NSWLEC 1012 at [45] where Moore SC and Hewett AC state:

45... 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.

22 He contends that there are 2 hedges that meet the criteria in s 14A. Hedge 1 comprises trees 1-4 and hedge 2 comprises trees 5-8. He considers with both groups of trees a relatively straight line can be drawn through 3 trees in each group with one tree offset. This arrangement, he says, agrees with the arrangement described in [45] of Wisdom v Payn .

23 Mr Perkins considers that the principles of view sharing enunciated by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140 are relevant in this matter. Firstly, the view is 'iconic' as it is principally the Harbour Bridge and associated harbour, described by him as 'picture postcard' and thus highly valued. Whilst his client now only has partial views of the bridge, other properties on the western side of Le Vesinet Drive enjoy 'whole views'. Secondly the views are from the front of the property oriented to take advantage of the view and the views lost are from standing and sitting positions. Thirdly the views are from ground floor living areas. He asserts that the protection of views from those living areas was fundamental to the approval process as covered in [19]. In considering the qualitative loss of view as described in Tenacity at [28] he says the loss is at least 'severe' and possibly 'devastating'. He further cites Tenacity at [30] by comparing the view loss in that matter to that of his client as the loss of a 'magnificent' view.

The respondent's position

24 Mr Loether for the respondent considers that the trees are not planted so as to form a hedge but rather are planted as individual specimens and therefore they do not meet the jurisdictional tests in s 14A(1). As a result, the application must fail on this basis. He contends, in using the words in Wisdom v Payn at [45] that ' in an ordinary English language understanding of the word the palms would not be perceived to be a hedge '.

25 However, he contends that if he is found to be wrong on this point, he considers that the application must fail on the basis of s 14E(2)(a)(ii) in that the obstruction of views is not severe. He states that the views from V1 are filtered views and the views from V3 are unimpeded views of Goat Island and the CBD. He considers that the protection of views from a seated position is unreasonable in the circumstances and cites Tenacity at [27] Sitting views are more difficult to protect than standing views.

26 Mr Loether states that the internal memo from Mr Sutton in 1997 regarding the proposed Jacaranda street tree planting is not relevant in these proceedings. Rather he says that the council's opinion on the trees is clear. Mr Sutton's statement of evidence (Exhibit 9) outlines Hunters Hill council's approach to requests for tree removal. In summary, the trees are protected by the Tree Preservation Order and would require council consent for their removal; removal would only be considered if the palms were damaging infrastructure or posed a safety threat to people or if they were in poor health. Further, Mr Sutton states:

Council does not consider removing trees for the purposes of improving a view to be a factor in making an assessment.

Council would consider the palm trees to be a significant landscape element from both the estate and when viewed from the river.

27 Mr Loether contends that many of the development assessment reports in the applicant's bundle relate to parts of the Pulpit Point complex other than the respondent's property, and in any event, the assessing officers were considering the separation of the built form with respect to view sharing and that the development was found to adequately address the issue of view loss from western side of Le Vesinet Drive. With respect to the landscape plans, the plans are marked as 'sketch' plans and the final plans are not included. An assessment report dated 11 August 1997 states in part:

It is not considered that the future planting of trees can be controlled by Council, and as the visual impact of the Pulpit Point development has been of much concern to Council and the community, a principle catalyst has been the lack of suitable landscaping, and accordingly it is considered appropriate that the landscape plan be approved generally in the form submitted.

28 Both advocates made submissions on matters to be considered under s 14F.

Findings

29 The first step in deciding the matter is to determine whether the trees meet the jurisdictional tests in s 14A(1). There is no doubt that the trees are planted and that they are at least 2.5m tall. The critical element is whether they are planted 'so as to form a hedge'. I am satisfied that they meet part of the description in Wisdom v Payn at [45] in that there is... ' 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'... . This applies to the 2 groups of palms as put by Mr Perkins at [23], i.e. trees 1-4 form one group and trees 5-8 another.

30 As stated previously, the trees subject to the application are planted in terraced garden beds between two blocks of units. The soil in the terraces is retained by timber and masonry walls. The timber retaining walls are not shown on the Proust & Gardner Survey Plan but can be seen in Photos A, B and F in Exhibit 8 - the report of the Tree Wise Men. Trees 1 and 2 are in the terrace closest to the street and 3m apart, Tree 3 is on the next level down and tree 4 the level below that. Trees 2, 3 and 4 are 2m apart from each other and tree 1 is 3m from tree 3. [Note - distances are based on the Proust & Gardner Survey Plan] Trees 5-8 are on the same level as tree 4 but on the southern side of the garden bed and are at 2m spacings. Photos D and I show a degree of interlocking of the canopies of at least trees 1,2 and 3.

31 The Trees Act does not include a definition of 'hedge' and it has been left to the Court to determine the details. In taking a purposive approach to the meaning of 'planted so as to form a hedge' the Court has considered many situations beyond the stereotypic concept of a formally planted, mono-specific, tightly planted, linear row of trees or shrubs. In the matter now before me, I consider that approach is appropriate. Despite the trees in group 1 being on three different levels, I am prepared to accept that they meet the jurisdictional test in s 14A(1) and are 'planted so as to form a hedge' for the purpose of the Act. This also applies to the group of trees 5-8. Therefore I agree with Mr Perkins that there are 2 hedges.

32 In considering compliance with s 14E(2)(ii) I find that the trees in Hedge 2 partly obstruct part of the panoramic views available to the applicant from the nominated viewing points but I do not find the obstruction to be a severe obstruction. Photos H, I, and J in the Tree Wise Men report and photos in the applicant's bundle (Exhibit A), all taken in March and April this year, show the relationship of the trees to the views to not perceptively differ from that seen at the hearing.

33 It was raised during the site inspection that the applicant was concerned about the increasing loss of views as the trees grew. The wording of s 14E(2)(a)(ii) uses the present tense, that is, the trees concerned must be severely obstructing a view from a dwelling on the applicant's land and this can only be determined at the time of the hearing. As stated in Tooth v McCombie [2011] NSWLEC 1004 at [14]:

14 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say 'may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.

34 As a result, I am not satisfied that any of the trees in Hedge 2 meet the jurisdictional tests in s 14E(2)(a)(ii) and no orders for any interference with them can be made.

35 With respect to Hedge 1, I am satisfied that at least 2 of the trees, trees 1 and 3 do severely obstruct a view from the applicant's dwelling. I consider that Tree 2 partially obstructs the view and that Tree 4 may partially obstruct the view.

36 I do not consider Tree 2 to create a severe obstruction of any iconic view from any of the viewing points. It is the most northerly of the trees and the obstruction is of part of the nearby Woolwich peninsular. Tree 4 is obscured in the photographs by tree 3 but given its height is 10 m (an uncontested height shown in a schedule of tree heights in the Tree Wise Men report) which is 3m shorter than tree 3, and it is growing at a level well below trees 1 and 3, it seems unlikely that this tree could be causing a severe obstruction of the iconic view of the Harbour Bridge or of any other view.

37 However, as I consider 2 of the trees are causing a severe obstruction of a view from a dwelling, I must consider s 14E(2)(b) which in turn requires consideration of the matters in s 14F. The relevant clauses are:

(b) There is no issue as to whether the trees are on adjoining land - see [4].

(c) The trees were planted after the applicant's dwelling was constructed but before the applicant purchased his property.

(d) The trees were in excess of 2.5 m when they were planted. The trees were estimated to be 7m when the applicant purchased his property and have grown to their current heights of 12 and 13m in that time.

(e) The Hunters Hill Tree Preservation Order would ordinarily apply to these trees - see [26].

(f) The applicant contends that the relevant development consent conditions relating to the respondent's land concern view sharing and the implementation of the landscape plan showing mature height. The respondent refutes this. In my view the landscape sketch plan shows species other than those planted on site and the mature heights shown in the schedule seriously underestimate the height that those nominated species would grow to. I accept that there was consideration of view sharing but that council found the development to provide for reasonable view sharing but this is countered to an extent by the landscape plans they reviewed at the time.

(g) The applicant considers that the trees do not contribute to the local ecosystem or to biodiversity - see [8]. If possums use the trees then they do contribute to biodiversity and to the local ecosystem.

(h) The owners and occupiers of the respondent property [10] and the council [26] consider the trees to make a significant contribution to the scenic value of the land and to the locality. It is clear from the development assessment reports that the landscape was an important consideration in the approval process.

(i) As the trees can be seen from nearby streets and from the water I consider the trees to have intrinsic value to public amenity. Trees 1 and 2 are close to the street frontage.

(k) As stated in the Tree Wise Men report, single stemmed palms such as these cannot be reduced in height. If the terminal bud is damaged or removed the palm will die. Extensive pruning of live fronds is detrimental to the health of the tree and is not in accordance with best practice as exemplified in AS4373:2007 Pruning of Amenity Trees . That is to say that pruning is not an option for remedying any interference with a view.

(l) The owners and occupiers [10] consider the trees contribute to privacy, landscaping, garden design and amenity and provide protection from sun and wind. The applicant considers these benefits to be modest as they are largely located between non-habitable spaces (garages) and on common property.

(n) The recent pruning by the respondent is covered in [13]. The respondent's position is that this was routine maintenance.

(p) The trees are evergreen.

(q) The extent of the view that is lost is the central view to the Harbour Bridge and to parts of the harbour, however the applicant has almost unobstructed view from the upper storey and extensive views from the ground floor of parts of the harbour, Goat Island, the CBD and the Anzac Bridge.

(r) The part of the dwelling from which the views to the Harbour Bridge are obstructed are from the ground floor living areas.

38 In weighing up if 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 1 and 3 by making an order under this Part, as required by s 14E(2)(b), I find the following.

39 I consider that trees 1 and 3 do severely obstruct a view that is iconic, in that it is a view of an iconic feature of Sydney. Whilst the applicant has what would be considered to be expansive views of the harbour and the city, the loss of the view of the bridge from the three viewing points in the living area, is, in the circumstances, a severe loss of those views. In this matter I consider the majority of the principles discussed in Tenacity to be relevant.

40 While the trees do make a contribution to the landscape and to the amenity of the residents in the respondent's property, the trees in question are only part of that group and their loss will not overly compromise the appearance of the property or the benefits the overall landscape provides. After consideration of the matters under s 14F I am satisfied that there is no order I could make apart from the removal of trees 1 and 3. On the evidence before me I am not satisfied that I can make any orders for any interference with any of the other trees that are subject to the application.

41 Given the impracticality of pruning palms for height control, the only option is the removal of the palms. Given the proximity of the trees to the street, removal in this instance could be by transplanting, either elsewhere on the estate or off site, or by cutting the palms down to ground level. The choice of removal will be left to the respondent.

42 No orders will be made with respect to replacement planting.

Orders

43 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) The respondent is to remove trees 1 and 3 as shown on the Proust & Gardner survey plan in Annexure A within 90 days of the date of these orders.

(3) The works are to be carried out at the respondent's cost.

(4) The exhibits except Exhibit C are retained.

 

J Fakes

Commissioner of the Court

 

Location Plan

 

Decision last updated: 23 June 2011