Land and Environment Court New South Wales

• Medium Neutral Citation: Muraben v Elmowy [2011] NSWLEC 1273
• Hearing dates: 15 September 2011
• Decision date: 15 September 2011
• Jurisdiction: Class 2
• Before: Fakes C; Galwey AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] hedge, obstruction of views; Act does not apply to self sown/ remnant trees; not planted so as to form a hedge; no jurisdiction to make orders
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Uniform Civil Procedure Rules 2005
• Cases Cited: Wisdom v Payn [2011] NSWLEC 1012; McLaren v Lewis [2011] NSWLEC 1170
• Category: Principal judgment
• Parties: D & I Muraben (Applicants); N & R Elmowy (Respondents)
• Representation: Applicants: Mr D Muraben (Litigant in person); Respondents: N & R Elmowy (Litigants in person)
• File Number(s): 20464 of 2011

Judgment

1 COMMISSIONERS: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Vaucluse against the owners of trees growing on an adjoining property.

2 The applicants are seeking the reduction in height by 3m of trees on the respondents' property on the basis that the trees obstruct views from their dwelling.

Procedural matters

3 Before considering the application, a number of procedural matters were raised by the applicants before and during the hearing. The first applicant wrote to the Court on 1 September 2011 advising that the respondents had failed to file and serve the documents upon which they were to rely by the date specified at the directions hearing; as a result, the applicant objected to it being allowed into evidence. That objection was sustained at the hearing.

4 In the letter, the applicant also sought permission to appoint his expert arborist, Mr Lester Willis, as his agent. This was rejected by the Assistant Registrar on the basis that an expert witness cannot be an advocate for a party as this would contravene the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 . The applicant was advised that he could appoint another agent or solicitor to act for him. At the hearing, the applicant again sought to appoint Mr Willis as his agent and not as his arborist. This was rejected for the reasons given by the Registrar. Given the previous appointment of Mr Willis as an expert it was considered that his appointment as an agent would have blurred the boundaries between the expert's duty to the Court and the advocate's duty to the client, particularly in a case involving Mr Willis' area of expertise. It was determined that Mr Willis could give opinion evidence as an arborist and that the applicant could represent himself.

The hearing and the evidence

5 Returning to the application, the diagram in the 'Tree Dispute Claim Details (High Hedges)' indicates five trees. On site it was clarified that only four of those trees are on the respondents' property; Tree 2 is on an adjoining property. Trees 1, 3 and 4 are mature Angophora costata (Sydney Red Gum) and Tree 5 is a mature Syzygium sp (Brush Cherry). All of the trees are located at the rear of the respondents' property. The applicants' property is upslope of, and overlooks, the respondents' land.

6 The three Angophoras are growing on a sandstone bench between a sandstone cliff and overhang and the cutting into which the respondents' dwelling is set. The trees are growing between sandstone boulders; the understorey is a mixture of locally native and exotic species. The Brush Cherry is located in the cutting below the sandstone bench some distance away from the nearest Angophora. Tree 1 is approximately 8m from Tree 3; Tree 4 is approximately 3-4m from Tree 3. Tree 5 is approximately 10m from Tree 3.

7 In accordance with Direction 11, Woollahra Council filed and served a Tree Report. The author of that report, Ms Simone Zeibots, council's Tree and Landscape Officer, was on site to speak to that report. The report considers the trees and their context in the locality, the history of applications made under the council's Tree Preservation Order (including requests from the applicants in these proceedings), the likely impact of the proposed orders sought by the applicants, and whether the trees meet the jurisdictional test in s 14A of the Act.

8 Section 14A (1) provides:

14A Application of Part

(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).

9 The relevant questions to be asked are: have the trees been planted, and if so, have they been planted so as to form a hedge.

10 In Ms Zeibot's opinion, the Angophoras are self-sown remnants of the original vegetation. This finding, she says in her report, is consistent with the reasons cited for refusing all previous applications to prune the trees. In her report she refers to the council's Register of Significant Trees which describes the remnant vegetation of the municipality. Relevantly it states that Sydney Red Gum dominates the Hawkesbury sandstone-derived valley slopes. On site, Ms Zeibot indicated the corridor of other remnant trees at the rear of adjoining and nearby properties. It was pointed out that Angophoras are common in the locality. The council contends that these trees are part of a substantial corridor of indigenous vegetation that forms the largest remaining pool of harbour-side vegetation in the municipality. As a result, they are significant in providing visual continuity and habitat linkage.

11 Mr Willis was asked his opinion on whether or not the trees were planted or self-sown. He opined that the fact that Trees 4 and 5 are along the line of the property boundary indicated that those trees could be planted. It is noted that the respondents' rear boundary is set at an angle and is only partly fenced. A surveyed post on the sandstone cliff marks the boundary. When a line is sighted from that post to the end of the existing fence, Trees 4 and 5 fall within the respondents' property and follow the general line of the boundary.

12 In regards to whether the trees were planted so as to form a hedge, the applicant stated that the trees were in existence when he and his wife moved in but that, in his opinion, they form a hedge because the crowns of the trees interlock.

Findings

13 Section 14A(1)(a) in part, requires the trees to be 'planted'. On the evidence before us we find that the three Sydney Red Gums are consistent with being self-sown remnants of the original vegetation. The randomness of their arrangement, the irregular spacings between them, the fact that they are growing between sandstone boulders, and the proximity of many other similar species and species generally found in association with Angophora, indicate to us, on the preponderance of probability, that the trees are not planted. We do not accept Mr Willis' opinion that the trees could be planted simply because they follow the line of the boundary. Therefore, Part 2A of the Trees Act does not apply to these trees.

14 Taking our conclusions further, notwithstanding our determination that the trees are not planted, they do not form a hedge. In Wisdom v Payn [2011] NSWLEC 1012 at [45]-[46], 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.

15 We are satisfied that, when seen in their environs, the trees would not be perceived as forming a hedge. The applicant considers that the intermingling of the canopies of the trees can and should be interpreted as a 'hedge'. This could also imply that a forest is a 'hedge'. This matter is discussed in McLaren v Lewis [2011] NSWLEC 1170 at [21]-[23] and in Wisdom at [44]. While it is possible that a copse of trees may be interpreted as a hedge for the purpose of the Act, in the particular circumstances of this matter, this is not the case.

16 For the reasons stated in [13] of this judgment, we conclude that the Angophoras are not planted so as to form a hedge and therefore as s 14A(1)(a) is not satisfied, the Court has no jurisdiction to proceed with the matter.

17 In regards to the Brush Cherry, that tree is topographically and spatially separate from the three Angophoras. Even if this tree has been planted, and we have no evidence to confirm its origins, given our findings on the Angophoras, the Brush Cherry is an individual tree and as such does not comply with s 14A(1).

18 Therefore, as a consequence of the foregoing, the Orders of the Court are:

(1) The application is dismissed.

____________________________

J Fakes

Commissioner of the Court

___________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 20 September 2011