Land and Environment Court New South Wales

• Medium Neutral Citation: Cattell & Anor v Riordan & Anor [2011] NSWLEC 1297
• Hearing dates: 22 September 2011
• Decision date: 22 September 2011
• Jurisdiction: Class 1
• Before: Hewett AC

Decision

1. The application under s 7 Pt 2 of the Act to prune trees to prevent damage is dismissed.

2. The application under s 14B Pt 2A of the Act to remedy, restrain or prevent a severe obstruction of a view is upheld.

3. Orders made for pruning.

• Catchwords: Trees (Neighbours) - Damage to property; Hedge; Obstruction of a view
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Haindl v Daisch [2011] NSWLEC 1145; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Kerry and Vicki Cattell (Applicants); Joseph and Patricia Riordan (Respondents)
• Representation: K & V Cattell - Applicants in person; Mr S Nash - Barrister (Respondent)
• File Number(s): 20379 of 2011

Judgment

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

1 This is an application pursuant to s 7 of pt 2 and s 14B of pt 2A of the Tree (Dispute Between Neighbours) Act 2006 (the Act) made by the owners of a property in Glaisher Parade, Cronulla against the owners of trees on an adjoining property.

2 The applicants seek orders for the pruning of the respondents' three Lilly Pilly trees to a height of 3.5 m and for that height to be maintained at the respondents' cost.

3 The orders are sought first on the basis that the trees are said to be likely to cause damage to the applicants' storm water pipe and secondly on the basis that the trees severely obstruct a view from the applicants' dwelling.

4 The hearing commenced onsite at the applicants' property. Mr Richards, an arborist, was retained by the respondents and assisted the Court at the hearing.

5 The applicants' claim is in two parts. First, I will address the claim under s 7 pt 2 of the Act under which the applicants contend that the respondents' three Lilly Pilly trees ( Syzigium australe ) that are growing adjacent to their side boundary are likely in the near future to cause damage to their storm water pipe. The applicants said they understood the "near future" to be a period of 12 months as adopted in the past by the Court, consistent with the guidance given in Yang v Scerri [2007] NSWLEC 592.

6 The applicants say the stormwater pipe is constructed of PVC and is about seven years old, being the same age as their house. They say that damage has not occurred, but they say they have had problems with their sewer line at another part of their property where they say that roots from a tree of the same species as those growing on the respondents' land have damaged their sewer line.

7 Mr Richards offered an opinion that the respondents' Lilly Pilly trees would be unlikely to cause damage to a properly constructed PVC storm water pipe and in view of the age of the pipe and the fact that there is no evidence of any damage having occurred I see no reason to state otherwise.

8 Under s 10(2) of the Act, the Court must not make an order under this part unless it is satisfied that the tree concerned has caused, is causing or is likely in the near future to cause damage to the applicants' property.

9 There is no damage that has been caused by either or any of the three trees, and no damage is currently being caused, and there is no likelihood of any of the trees causing damage to the applicants' stormwater pipe in the near future.

10 As a consequence, the Court's jurisdiction is not enlivened and no order can be made. Therefore, the application under pt 2 is dismissed.

11 I turn now to the second element of the applicant's claim made pursuant to s 14B of pt 2A of the Act.

12 The applicants claim that the respondents' trees T1, T2 and T3 severely obstruct a view from their dwelling.

13 The three trees are a species of Lilly Pilly commonly referred to as Brush Cherry (Syzigium australe). They are planted close to and along the rear northern boundary of the respondents' property. They are about 5 to 5.5 m in height, with the foliage interlocking to form a hedge.

14 The viewing point is from the applicants' living room window that has a southerly aspect toward Port Hacking and the Royal National Park in the distance. A photograph tendered in the applicants' submission, taken in 2003, shows the view from a standing position as a panorama comprising a distant view of sandy shoreline, water and national park behind. For the most part, the beach and water elements are viewed as a thin horizontal line just about the ridge cap of the respondents' roofline, although the extent of this aspect of the view would vary subject to the height of the observer. The most easterly section of the view frame provides a potentially more extensive view of the waters of Port Hacking and the national park in the distance. This part of the view is achieved through a relatively narrow gap between the respondent's roofline and the second storey deck and roof of an adjacent property to the east. The 2003 photograph shows a palm tree in the foreground punctuating that part of the view, however the view is clearly of water and distant shoreline. This component of the overall water view comprises about 25 to 30% of the available panorama from the window. The foreground elements of the view include the respondents' roof and solar fixture.

15 In determining whether the obstruction of the view in this case is a severe obstruction I refer to Haindl v Daisch [2011] NSWLEC 1145 in which Moore SC and Hewett AC at 64 made the following observation that I consider relevant to these proceedings:

As in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blankwalled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point.

16 At the time of the hearing, trees T1, T2 and parts of T3 obscured greater than 90% of the view from this window as shown in the 2003 photograph. At the time of the hearing, I could not see any water or foreshore sand line as a direct consequence of the respondents' trees and although the view incorporates a close view of the respondents tile roof and solar heater, I consider the more distant view to be a view of some quality incorporating elements as already described. I therefore consider the obstruction of that view to be severe.

17 In the course of considering the view from the applicants' living room, the parties explored options for obtaining some re-instatement of the 2003 view whilst also retaining the respondents' privacy.

18 Arborist Richards proposed pruning by way of reduction pruning. He suggested cutting out some branches whilst retaining others at the existing height, so that the view would be achievable through the trees as opposed to having the trees "lopped", as he described, it to a specified height.

19 The applicants were not disposed to this approach. They say they would prefer a complete reduction to a modest height that would allow their view, as well as retain their neighbours' privacy.

20 The applicants were particularly concerned at the potential future height of the trees, which they say is likely to be considerably higher than stated by Mr Richards in his tree report. They pointed out the large size of another instance of a Lilly Pilly on an adjoining property as an illustration of this potential. Mr Richards was of the opinion that the respondents' trees would not achieve a similar size to the tree to which the applicants pointed, as he considered the respondents' property had shallow soils evidenced by exposed sandstone rocks in front of the respondents' property.

21 Mr Richards' report states that the three Syzigium australe will grow from between 4 to 6 m. My observations on the respondents' land at the time of the hearing and in other locations, is that the species is likely to achieve considerably greater proportions than suggested by Mr Richards.

The framework for consideration

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

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).

23 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 situation on the land (s 14B(a)) or of any view from a dwelling situated on the land (s14B(b)). If the obstruction occurs as a consequence of trees to which this Part applies, the trees must be situated on adjoining land.

24 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.

25 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 situated on the applicant's land, 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)).

26 Of relevance is s 14E(2). This states:

The Court must not make an order under this Part unless it is satisfied that:

(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 If the Court is satisfied that 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.

28 I inspected the trees from the respondents' land and I am satisfied that they meet the definition of a hedge under s 14A(1), that is, there are three trees and they are planted so as to form a hedge and they do rise to a height of at least 2.5 m above existing ground level.

29 I am satisfied that the requirements of s 14C have been met with regards to notice to the application being given to owners of the affected land on which the trees are located.

30 I am satisfied with the evidence before me that trees T1, T2 and T3 are severely obstructing a view from the applicants' dwelling.

31 I am also satisfied that the severity and nature of the obstruction is such that the applicants' interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggests the undesirability of disturbing or interfering with the trees by making an order under this part.

32 As a consequence of the foregoing the Court's jurisdiction is enlivened and orders can be made.

33 Section 14F requires that before a determination can be made under this part, the Court is to considered a number of matters. The relevant matters in this case are:

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

(b) The trees did not exist prior to the construction of the applicants' dwelling.

(g) The trees would contribute to a local ecosystem and to biodiversity.

(h) The trees are part of the overall greenness of the locality and they do make a small contribution in this regard.

(k) The species is suited to pruning whether to a set height across a horizontal line or by way of reduction pruning or thinning. Mr Richards expressed the view that although 'topping' is less desirable in this instance it would not lead to serious consequences for the health or the condition of the trees. Mr Richards was of the opinion that selective thinning of the branches would be a better solution. He agreed that such pruning would need to be routinely undertaken and essentially would lead to the need for the parties to re-negotiate pruning on a regular basis.

(q) The nature and extent of the view could not be characterised as iconic. However, it is more than merely district views into the distance since although the foreground incorporates the roof and solar panel fixtures of the respondents' roof, the view also includes powerlines and other roofs and more distant trees. However, the more distant view is of water and sandy beach and the national park on the skyline, a view that can be reasonably considered of a desirable quality. The view is from a living room window toward the centre of the house incorporating a kitchen through which that view can be gained from a standing position throughout.

34 As a consequence of the foregoing the orders of the Court are:

(1) The application under part 2 to prune trees to prevent damage to property is dismissed.

(2) The application under part 2A to remedy, restrain or prevent a severe obstruction to a view is upheld.

(3) The respondents are to arrange and pay for the pruning of trees T1, T2 and T3 to a height of not more than 3.5 metres above ground level, measured from the base of each tree.

(4) The pruning is to be undertaken within 60 days of the date of these orders and is to be undertaken by an arborist with the minimum qualification level of AQF 3 and with appropriate insurances for the work.

(5) The respondents are to maintain the trees and any subsequent growth from other species growing within the spaces between T1 and T3 to a maximum height of 4 metres.

(6) The applicants are to provide all reasonable access to their property for the respondents' contractor to the extent required to efficiently and safely carry out the works in 3 and 5, providing the respondents notify the applicants at least 36 hours in advance of the initial pruning and any subsequent maintenance pruning.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 20 October 2011