Land and Environment Court New South Wales

• Medium Neutral Citation: Karellas v Stevens [2012] NSWLEC 1272
• Hearing dates: 27 September 2012
• Decision date: 04 October 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Johnson v Angus [2012] NSWLEC 192; Hough & anor v Rettenmaier & anor [2010] NSWLEC 1354; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Applicant: Vasilli Karallas; Respondent: David Stephens
• Representation: Applicant: Mr G McKee (Solicitor); Respondent: Mr M Seymour (Barrister); Applicant: McKees
• File Number(s): 20706 of 2012

Judgment

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 Mosman against the owner of trees growing on adjoining property.

2 The applicant contends that the trees in question severely obstruct views from his dwelling. He seeks orders to remove the trees and limit any replacement plantings to species that can be maintained at, or not exceed, a number of specified heights.

3 The trees are identified in an arborist's report prepared by Ms Catriona Mackenzie, a consulting arborist engaged by the applicant. I note that Ms Mackenzie did not inspect the trees from the respondent's property. The trees the subjects of the application are:

• T1 - Xylosma sp - several individual trees on the western boundary of the respondent's property;
• T2 - Bambusa sp - a clumping species of Bamboo
• T3 - Strelitzia nicolai - Giant Bird of Paradise; two plants
• T4 - another species of clumping Bamboo

4 According to the application, the nominated viewing points, positions, obstructed views and trees in contention are:

• V1 - main living room; sitting and standing positions; district and land/water interface across Middle Harbour to Clontarf and Clontarf Beach; T3 and T4 with T1 a possibility for future obstruction;
• V2 - balcony adjoining the eastern side of the living room; water, landform and district views (as above); significantly obscured by T3 and to a lesser extent by T4;
• V3 - main bedroom; land/water interface and district views; T3 and T4.

5 During the hearing Mr McKee, for the applicant, stated that his client would be content with pruning T1 and T2 to the height of the southern portion of the respondent's guttering and that the applicant would undertake to plant mature specimens of other trees such as Raphis palms to replace T3 and T4.

Are the trees a 'hedge' for the purpose of the Act?

6 The hearing commenced with an inspection of the nominated trees from the respondent's property.

7 T1 was confirmed as comprising a row of about 10 or 11 Xylosma sp planted along the south-western boundary of the respondent's property. T2 is a linear arrangement of a species of Bamboo extending several metres along the western portion of the southern boundary. T3 comprises a large clump of Strelitzia nicolai in roughly the centre of the rear garden approximately one metre north of the boundary, and another much smaller clump of Strelitzia nicolai some metres to the west of the large clump on the other side of a pathway of stepping stones. T4 is another linear arrangement of another species of Bamboo, in two sections, along the eastern end of the southern boundary. T4 is on a terrace below the bed containing T1, T2 and T3.

8 In applications made under Part 2A, there are a number of jurisdictional tests to be satisfied before any orders can be considered. 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

9 (b)rise to a height of at least 2.5 metres (above existing ground level).

10 The parties agree that s 14A(1) applies to T1, T2 and T4, a position with which I concur. There is no agreement on T3.

11 The respondent stated that his gardener (whose name he not recall) was the gardener for the previous owners of his property and that the gardener planted the Strelitzias as individual specimens. He also stated that he valued the large clump of Strelitzia as an aesthetic feature of the garden, and the trees generally for the shading and privacy they afford his property.

12 Mr McKee contends that there are at least two Strelitzia that are clearly identified and there may be another smaller separate plant close to the large clump that Ms Mackenzie pointed out. Mr McKee also submits that T3 and T4 could be considered as collectively forming a hedge.

13 Mr Seymour considers that the position with T3 is not clear and it is not objectively obvious that the plants were planted so as to form a hedge or operate as a hedge. He relies on the findings of Preston CJ in Johnson v Angus [2012] NSWLEC 192.

Findings - T3

14 In regards to T3, the decision in Johnson clarifies the meaning of s 14A(1)(a). Of relevance are the following paragraphs:

37I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted...so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue in that state of affairs of being planted so as to form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.

38If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees.

39Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of the determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and the present to determine whether the trees are planted so as to form a hedge.

40Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnson's submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.

41But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed on its own terms and in the context of Part 2A, does not circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether are all of one species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge.

15 In regards to the intent of the planting, that is, were the Strelitzia planted so as to form a hedge or for some other purpose, this cannot be tested. While the respondent made a statement regarding a conversation with his gardener about the planting, the gardener was not present at the hearing. Therefore, the other criteria considered by Preston CJ as relevant to that determination need exploring.

16 There are two distinct clumps of Strelitzia - the clumps comprise a number of stems of different heights and diameter - suckering is a characteristic of the species. The larger clump appears to be more established than the smaller clump, however whether they were planted at different times cannot be confirmed but it would appear to be the case. While there may have been more than one individual in what is now the larger clump, this is not clear, as the 'separate' stem indicated by Ms Mackenzie could equally be a larger sucker. In the absence of DNA testing, this cannot be confirmed.

17 The two clumps are some metres apart and separated by a path of stepping-stones. While the other nominated 'hedges' are planted in linear arrangements close and along the boundaries of the respondent's property, the large clump is at least a metre away from the stone retaining wall that forms the boundary between the parties' properties; the smaller clump is further back. Therefore the arrangement of the Strelitzia is not consistent with the other plantings or, in my opinion, would be 'read' as forming a hedge in any ordinary understanding of the concept.

18 While Strelitzia could be planted to form a screen, in my view, given the arrangement of the trees, they are more consistent with being planted as individual specimens or features and not as a hedge.

19 In regards to Mr McKee's submission that T3 and T4 form one hedge, the genera are quite different in their form, the Strelitzia are planted in a separate and more elevated garden terrace to the bamboo, and, as discussed above, the Strelitzia are not planted along the boundary unlike the bamboo which is planted along the boundary wall.

20 Therefore I am not satisfied on the evidence before me that s 14A(1)(a) applies to T3 in its own right or if combined with T4. Therefore, the Court has no jurisdiction to make any orders with respect to T3.

Is there a severe obstruction of a view?

21 The applicant's property is upslope of that of the respondent. The views said to be severely obstructed by the respondent's trees, are generally across Middle Harbour to Clontarf and Clontarf Beach to the north.

22 The nominated viewing points are the open plan living/ dining/ kitchen area and associated balcony, and the main bedroom. These rooms have large north facing windows. The applicant stated that when he purchased the property in 2005, he could see Clontarf Beach and most of the ridge top of the roof of the respondent's dwelling - some of which was punctuated by T3. No evidence, such as photographs, was adduced to indicate the views at the time of purchase.

23 The relevant jurisdictional test to consider is s 14E(2) which 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.

24 Mr McKee accepts that T1 and T2 are not severely obstructing any view from the applicant's dwelling and that the Act does not apply to future loss of views; as a consequence, orders for these trees are not pressed. In regards to T3 and T4, Mr McKee contends that the panoramic views originally available to his client are now severely obscured by these trees, thus satisfying s 14E(2)(a)(ii).

25 Mr McKee relies on the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. While he accepts that Clontarf Beach may not be an icon, nonetheless, the applicant had whole views of the interface between land and water on the opposite shoreline of Middle Harbour; the views for the most part are across the rear boundary; and are principally from living areas.

26 In regards to the balancing of interests required in s 14E(2)(b), Mr McKee submits that the privacy and shading issues raised by the respondent should have little weight as the rear of his house faces south and the vegetation along the rear of the applicant's property provides adequate screening. In addition, the proposed replacement plantings would provide additional screening to meet the respondent's needs. He contends that the use of the rooms at the rear of the respondent's dwelling as bedrooms creates less of a privacy issue than for example, the use of a swimming pool as considered in Hough & anor v Rettenmaier & anor [2010] NSWLEC 1354 at [23] and [28].

27 Mr Seymour contends that any obstruction by T3 should be irrelevant as he considers it is not a hedge for the purpose of the Act. However, even if it were found to be a hedge, the loss of one vertical section of view from the shoreline to the ridgeline of an otherwise panoramic view, is not severe. He submits that when considered holistically, there is still an expansive view, albeit one punctuated by vegetation on several properties including that of his client. Mr Seymour contends that the impact of T4 is minor over a small area of the available view and that views are available through it.

28 Mr Seymour argues that the removal of T4 would decrease the respondent's amenity and only restore a small portion of a water view. He contends that the respondent's privacy would be compromised and it would be unreasonable to rely on the vegetation on the applicant's land during the time taken for any replacement trees to reach the required height. In his view, the balance required by s 14E(2)(b) would not be achieved.

Findings

29 When standing and sitting in the living room and on the balcony, I could see an uninterrupted view of Chinaman's Beach to the northwest. The central portion of the broad panorama across Middle Harbour to Clontarf was obstructed in part by T3 and T4 as well as by other trees including a tall date palm and more distant Eucalypts or Angophoras. The eastern portion of the panorama was obstructed by a row of Cupressus torulosa (Bhutan Cypress) along the western boundary of the property immediately east of the applicant's property. However, there were views of Middle Harbour and Clontarf to the northwest and to the northeast, T1 and T2 did not obstruct any views from this area.

30 When standing at the bedroom window I observed filtered views of Clontarf Beach through T3 and T4. The Bhutan Cypress trees obstructed the view to the northwest; the view to the northeast was obscured in part by a large Camellia growing on the applicant's property. As I am less than average height, a taller person may have seen more of the view. I also note that the bedroom is at a lower level than the living room.

31 T1 and T2 do not obstruct any views from the nominated parts of the applicant's dwelling.

32 Given my findings that Part 2A of the Act does not apply to T3 no further consideration of it is required. However, if I am wrong in those findings, I do not consider the impact of T3 on the views from the applicant's living area and bedroom to be severe. At most the obstruction is moderate.

33 In regards to the impact of T4 on the view, I agree with Mr Seymour that the obstruction is minor.

34 Therefore, as s 14E(2)(a)(ii) is not satisfied for any of the trees to which Part 2A applies, the Court has no jurisdiction to make any orders for any intervention with any of the trees.

35 Therefore, the Orders of the Court are:

(1) The application is dismissed.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 04 October 2012