Land and Environment Court New South Wales

• Medium Neutral Citation: Haddan v Castles [2012] NSWLEC 1137
• Hearing dates: 29 May 2012
• Decision date: 29 May 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; removal of one hedge

• Catchwords: TREES [NEIGHBOURS] Hedge; views
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Regulation 2007
• Cases Cited: Wisdom v Payne [2011] NSWLEC 1012; McLaren v Lewis [2011] NSWLEC 1170; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mrs Elaine Haddan (Applicant); Mr Peter and Mrs Jodi Castles (Respondents)
• Representation: Applicant: Mrs E Haddan (Litigant in person); Respondent: Mr P Castles
• File Number(s): 20184 of 2012

Judgment

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

1 COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Port Macquarie against the owners of trees growing on an adjoining property.

2 The applicant is seeking orders for the pruning of a number of trees to a height of 1.6 m in order to restore views the applicant contends have been lost as a result of those trees.

3 The applicant purchased her property in 1992. The views in contention are of the water, generally to the north towards Flynn's Beach, headlands near the town centre of Port Macquarie and the northern shoreline towards Point Plomer. Photographs included in the application show the views as they were at least 6 years ago before the respondents purchased their property in 2006. The photographs were taken from the front yard of the respondents' property, which is to the north of the applicant's.

4 The respondents obtained council consent for alterations and additions to their dwelling. The development application also included a front fence. According to the first respondent, council conditioned the landscaping forward of the fence line as part of the consent. However, the respondents also value the landscaping for the privacy and shade it provides. The fence and landscaping were installed in 2009.

5 The applicant has nominated three viewing points; all are windows/ glass doors that form the northern side of the open plan living/dining room.

6 There are a number of jurisdictional tests that must be satisfied before any application under Part 2A can be determined.

7 The first relevant consideration is whether the trees are a 'hedge' for the purpose 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)

8 The judgments in Wisdom v Payne [2011] NSWLEC 1012 and McLaren v Lewis [2011] NSWLEC 1170 have determined that there must also be a clear linear/ spatial arrangement of the trees.

9 The on-site hearing identified three 'hedges'. Hedge 1 is a clump of bamboo planted on the front southern boundary of the respondents' property close to the dwelling and enclosed within the front yard. Hedge 2 is another clump of bamboo on the outside of the fence along the southern boundary on the south-western corner. Hedge 3 is a row of mixed species of trees and shrubs including a number of Lillypillies, a Mango tree, Ivory Curl tree, Cassia sp., and a Tuckeroo. Towards the north of that row is an established Dracena planted as a street tree on council-owned land. This tree pre-dated the respondents' ownership of their land.

10 Bamboo is prescribed by the Trees (Disputes Between Neighbours) Regulations 2007 as a tree for the purpose of the Act. All hedges are planted, and most plants within the hedges exceed 2.5m in height. Therefore I am satisfied that all three hedges satisfy the jurisdictional tests in s 14A(1).

11 The next relevant test is s 14E(2). This states:

(2)The Court must not make an order under this Part unless it Iis 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.

12 Therefore, the first consideration is whether any or all of the hedges severely obstruct a view from any or all of the nominated viewing points.

13 The first general observation is that the setback of the applicant's dwelling from the street, its relationship to the respondents' dwelling, combined with the curved configuration of the street, inevitably confines the field of view.

14 Dealing with V3 first, the potential view of the water from this position, essentially from the dining room table, is inherently limited by its setback from the street. The view is chiefly obstructed by a tree growing on the applicant's property and not by any of the hedges. It was agreed that the claim with respect to V3 should be withdrawn.

15 It was also determined that Hedge 1 does not obstruct any view of the water from the applicant's dwelling and therefore no orders can be made with respect to this clump of bamboo.

16 I am satisfied that the view from V2 is severely obstructed by Hedge 2 and possibly parts of Hedge 3. In this regard, s 14E(2)(a)(ii) is satisfied.

17 With respect to V3, this is the window closest to the street and from which the most expansive views have always been available. The applicant estimates that Hedges 2 and 3 have obstructed at least 50% of the view from this window. At the time of the hearing, the coastline including Flynn's Beach, associated headlands and the northern shoreline to Point Plomer were still available. The water views are limited in the foreground by vegetation along the shoreline and punctuated by tall trees, including a prominent Norfolk Island Pine. Hedges 2 and 3 limit the views to the east of north. The closest shoreline (Flynn's Beach) is approximately 800m to the north of the applicant's dwelling.

18 In matters concerning Part 2A, the Court has often referred to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. In summary, the issue of impact on views is considered in qualitative and quantitative terms. Water views are rated more highly than views of land; sitting views and views across side boundaries are noted as being more difficult to retain; and views from living rooms and kitchens are discussed as being more important than views from bedrooms. A sliding scale of impact is used where the impact of a proposed development on a view is rated as negligible, minor, moderate, severe or devastating.

19 In regards to V3, I consider the impact of Hedges 2 and 3 to be moderate but not severe and therefore s 14E(2)(a)(ii) is not satisfied for this viewing point.

20 However, as that section is satisfied for V2, I must consider the balancing of interests as required by s 14E(2)(b). This requires consideration of matters in s 14F of the Act.

21 Of relevance are the following considerations:

• Hedges 2 and 3 are on the respondents' land and not on council land (s 14F(a));
• The applicant certainly owned her property before the trees were planted The photographs included in the application mark the locations of two power poles as reference points to the changing view and the impact of the hedges. As already noted, the photographs were taken from the respondents' front garden (prior to them owning it) and not from the windows of the applicant's dwelling. The photographs also show that over the years other vegetation has also grown including the Dracena on the street corner and other street trees to the north. (s 14F(b));
• The trees were planted as a condition of development consent (s 14F(e));
• The trees provide amenity to the respondents including privacy, shade and screening. As they are planted forward of the fence line they also contribute to the streetscape and to public amenity. A number of trees within hedge 3 will contribute to the local ecosystem (sections 14F(g)(h)(i)(l));
• Another consideration is whether the trees will respond to pruning (s 14F(k)). With respect to the bamboo comprising hedge 2, while it could tolerate pruning to 1.6m, the regrowth would be impractical to manage and removal would be the most sensible option if orders were to be made. The Lillypillies in hedge 3 could be reduced however, given their current height, such extensive pruning would be detrimental to their health and structure. The Ivory Curl tree could be reduced but this would limit its ornamental value. The mango, Cassia and Tuckeroo would not tolerate the degree of pruning sought by the applicant. These trees will eventually grow above the view line; I note that the Cassia is almost above that point now.
• While water views are clearly valuable and desirable, the views from the applicant's property are across a side boundary. As considered in Tenacity, views across side boundaries are more difficult to retain over time. As the views are distant views of the water, it is also unlikely that the intervening landscape will be as it was twenty years ago. As previously stated, the setback of the house from the street and its position on the block inevitably limit the available views. (sections 14F(m)(q)(r)).

22 However, after considering the relevant matters, I find that the removal of Hedge 2 would remove the greatest obstruction of the views as seen from V2. However, its removal will not fully restore the former views but they should be less obscured. I do not propose to make any orders for any intervention with any of the plants in Hedge 3 as I consider the benefits they provide outweigh the loss of views from the applicant's dwelling.

23 Therefore, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 90 days of the date of these Orders, the respondents are to remove hedge 2, the clump of bamboo outside the fence on the southwestern corner of their property. Any replacement planting must be maintained to fence height.

(3) The application with respect to hedges 1 and 3, and viewing point 3 is dismissed.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 30 May 2012