Land and Environment Court New South Wales

• Medium Neutral Citation: McDougall v Philip [2011] NSWLEC 1280
• Hearing dates: 26 September 2011
• Decision date: 26 September 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; Orders sought for creation of a view not available to the applicant when property purchased; contrary to the intent of the Act
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Interpretation Act 1987
• Category: Principal judgment
• Parties: Ms A McDougall (Applicant); Mrs B and Mr G Philip (Respondents)
• Representation: Applicant: Ms A McDougall (Litigant in person); Respondents: Mrs B and Mr G Philip (Litigants in person)
• File Number(s): 20598 of 2011

Judgment

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

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

2 The trees are a row of five conifers ( xCupressocyparis leylandii cv) and one palm growing along the fence at the rear of the respondents' property.

3 The applicant contends that one of those trees, Tree 3, severely obstructs a view of Middle Harbour from her dwelling. The applicant's dwelling is a second floor unit that overlooks the rear of the respondents' property.

4 The applicant is seeking orders for the pruning of Tree 3 to the height of the gutter on the upper level of the respondents' two-storey dwelling and or the thinning of branches with subsequent quarterly pruning to restore and maintain a view.

5 The respondents do not wish to prune or thin the tree on the basis that doing so would compromise the privacy the tree affords their dwelling.

6 The trees were first inspected from the respondents' property. The respondents contend that when they purchased their property in early 2002, there were six well established conifers along the back fence. At the time, the trees provided privacy between their property and the part three, part four-storey unit block to the west. The units are set back only 2 m from the dividing fence. In the time since they have owned their property, one of the trees died and another suffered extensive dieback.

7 The applicant purchased her unit in April 2010. A photograph (marked 'A' in exhibit A), said to be taken not long after she moved in, and taken by the applicant from a standing position through an open window, shows a small patch of the water of Middle Harbour to the northeast. The water view is framed by the foliage of Tree 3 and a mostly deciduous Plane tree growing as a street tree some 100 m or more away. The view is an oblique view from a corner of the applicant's living room.

8 The respondents stated that in or around August/ September 2010, following requests from the applicant's strata manager, they removed one dead tree and a dead part of another adjoining tree for reasons of safety. The respondents believe the trees were poisoned however no evidence was provided to confirm this. The applicant's unit and the one directly above it are now clearly visible from the respondents' backyard. Trees 3, 4 and 5 (as well as the palm) to the north of the row provide screening from the units on the northern end of the applicant's building. It was noted that a secondary trunk of Tree 3 close to the boundary fence is dead.

9 Photograph A shows a gap between the trees, however, it is unclear as to whether the dead tree was standing or fallen when it was removed.

10 A photograph (marked 'B') taken for the purpose of the application to the Court, illustrates what the applicant contends is the loss of view as a result of the growth of the tree. I note that this photograph has not been taken from the same position as that shown in photograph A. It has been taken from a different angle and to the north of the open window through a fixed window. The Plane tree is also deciduous in this image.

11 Photograph C is a view taken from the unit directly above that of the applicant and shows an expansive view of Middle Harbour and the suburbs of Northbridge and Seaforth. This photograph is marked as "view without tree" and is undated.

12 Apart from a standing view of Middle Harbour, the applicant contends that she has lost sitting views through the tree towards Beauty Point and Seaforth.

13 At the hearing, it was noted that there remains a partial/ filtered view from the standing position through the opening window through which photograph A was taken but slightly less than shown in photograph A. The Plane tree in the middle distance is in the process of leafing up. From a sitting position in the applicant's living room, there is an obscured view through the foliage of Tree 3 to the distant ridge of Beauty Point or Seaforth.

Jurisdictional and discretionary considerations

14 Section 14A of the Act requires there to be two or more trees, planted so as to form a hedge, which rise to a height of at least 2.5 m, on appropriately zoned land. I am satisfied that the jurisdictional tests in s 14A are met.

15 Section 14E 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.

16 In this case, putting the applicant's case at its highest, I am satisfied that Tree 3 severely obstructs the very small view of Middle Harbour from the opening window in the applicant's living room. Therefore as the jurisdictional test in s 14E(2)(a)(ii) is met, consideration of the discretionary matters in s 14F is required in order to determine s 14E(2)(b).

17 The following clauses are relevant.

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

(b) The trees were probably planted after the applicant's unit block was constructed but well before the applicant purchased her unit.

(c) This point is particularly relevant. The trees were only slightly smaller than their current size when the applicant purchased her unit some 18 months ago. At best, based on my observations of the extension growth of the foliage of Tree 3, the tree may have grown about 200 mm in that time.

(h) The trees contribute to the scenic value of the land on which they are growing as they screen and soften the unit block.

(k) The pruning of Tree 3 to the height requested by the applicant would remove a substantial portion of the tree. While this would probably have some detrimental impacts on the tree's health, this species is relatively tolerant of pruning.

(l) As previously mentioned, the respondents value the trees for the privacy they afford their dwelling and back garden. It is noted that this row of trees adjoins other similar rows of conifers on properties adjoining the respondents' land. These hedges are a common landscape design element in the vicinity.

(m) The most obvious other obstruction to the view from the applicant's property is the large Plane tree growing in the nature strip some streets away. In full leaf, this tree would obscure all but a very small portion of the potential limited view of the water of Middle Harbour. This tree appears to be a healthy tree that will continue to grow. Trees on council-owned land are not subject to the Act.

(n) The respondents have responded to requests to remove dead and potentially dangerous trees and branches.

(p) The trees subject to the application are evergreen.

(q) The affected view is a very small portion of the water of Middle Harbour.

(r) The view is obscured from a standing position in a corner of the applicant's living room.

Findings

18 Section 14B(b) of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which Part 2A applies.

19 When the applicant purchased her unit, the available view, from a relatively restricted part of her unit, was a very small patch of the water of Middle Harbour. This original view was framed by the outer foliage of a few branches of Tree 3 and enabled by the largely deciduous state of the distant Plane tree. This is the view that the Act may enable to be remedied if the jurisdictional and discretionary considerations lead to that conclusion. In my opinion, the sitting view through the tree could have been marginally improved through the demise of the secondary leader of Tree 3.

20 The applicant seeks orders that would substantially increase the view from her dwelling, and in effect, create a view that was not available to the applicant when she moved in. This, in my opinion, is not why the Act was amended in August 2010. The amendment gave the Land & Environment Court a strictly limited new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling or views from a dwelling.

21 Pursuant to s 34(2) of the Interpretation Act 1987 , the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act.

The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies.

The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act.

The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review.

22 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006 " undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force - see http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_tree_disputes_information]

a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.

b) That this jurisdiction be strictly limited, with applications restricted to hedges which:

are both high and give the effect of a solid barrier, and

are causing severe impact for a dwelling, and

have caused the impact to the applicant (not to the previous occupant), and

are located between neighbours on adjoining land.

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title.

f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.

23 The discussion relating to Recommendation 9 [page 35] states in part that:

The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase.

24 The amended Act incorporates all of the recommendations made in the review.

25 As stated above, the matter before the Court involves a very small and oblique view through foliage from a limited viewing position. The making of orders to substantially increase the view from the applicant's dwelling would be counter to the intent of the amended Act and would create an undesirable precedent and unreasonable expectations of future applicants. The practicality of reducing those few branches which frame the original view is impractical and of limited utility given the distant obstruction caused by the Plane tree. The view shown in Plate C is a view that the applicant did not have, and could not have given the position of her unit.

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

(1) The application is dismissed.

_______________________________

J Fakes

Commissioner of the Court

Decision last updated: 14 November 2011