Adamson v Weston

[2021] NSWLEC 1677

Land and Environment Court

New South Wales

Medium Neutral Citation:

Adamson v Weston [2021] NSWLEC 1677

Hearing dates:

20 August 2021 and 2 November 2021

Date of orders:

08 November 2021

Decision date:

08 November 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

(2) The exhibits are returned except for A, 1 and 2.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – lilly pilly hedge – obstruction of views – whether the view obstruction is severe – extent of the view previously available to the applicants – distance from the applicants’ dwelling to the trees – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

Hinde v Anderson [2009] NSWLEC 1148

Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Category:

Principal judgment

Parties:

John James Adamson (First Applicant)
Jennifer Faye Adamson (Second Applicant)
Shane Brian Weston (First Respondent)
Catherine Valerie Yates (Second Respondent)

Representation:

Counsel:
J Adamson (Litigant in Person) (First Applicant)
J Adamson (Litigant in Person) (Second Applicant)
W Smith (Solicitor) (Respondents)

Solicitors:
Savage and Love (Respondents)

File Number(s):

2021/136529

Publication restriction:

No

Judgment

Background to the application

1. Jenny and John Adamson (‘the applicants’) bought their Way Way property in May 2017. The dwelling they constructed on their land was completed in August 2018. Catherine Yates and Shane Weston (‘the respondents’) own the adjoining property to the Adamsons’ north. The respondents have planted, in several stages, groups of small-leaved lilly pillies (Syzygium luehmannii) (‘the trees’) on their property along the common boundary shared with the applicants: 11 trees in 2009/2010 (8 trees in ‘Group A’ and 3 in ‘Group B’), 3 trees in 2016 (extending Group B) and 3 more trees in 2018 (‘Group C’) (Exhibit 1, pp 5–6). The planting time of two other trees in Group B is not provided. There are 19 trees in total. Finding their views affected by the trees, the Adamsons applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the trees to be pruned and maintained so as to restore their views.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

3. If orders are made, they might be those sought by the applicants, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent, in this case, a severe obstruction of a view from the applicants’ dwelling.

The hearing

4. The hearing took place via MS Teams on 20 August 2021. The applicants were self-represented; Mr Smith, solicitor, represented the respondents. At the end of the hearing I informed the parties that my decision might benefit from a site view, so one would be arranged when changes to travel restrictions would enable me to travel to the site. With additional time to review the evidence, I have been able to reach a decision without a site view. I informed the parties of this at a further mention on 2 November 2021.

The applicants made reasonable effort

5. The applicants wrote to the respondents in April 2021. The letter was addressed to Shane and Kathy Watson (Exhibit 1, Annexure E). Mr Weston wrote in his affidavit (Exhibit 1, par 33) that the letter “…is not addressed to us. It does not describe our correct surnames.” The letter was placed in the respondents’ roadside letterbox. Mr Weston wrote in his affidavit that he does not usually use this letterbox, but the letter was found there some time later.

6. The applicants submitted that they spoke with the respondents about the trees. At par 39 of his affidavit Mr Weston described a conversation with Mrs Adamson on his property during which he threatened to “…get the police next time.”

7. The applicants have made effort by writing to the respondents, raising their issues regarding the trees. The respondents have shown an unwillingness to negotiate and displayed no spirit of neighbourly cooperation, borne out by Mr Weston disingenuously stating the applicants’ letter was not addressed to the respondents, when no great deductive powers were required to recognise the intended recipients of the letter. In the circumstances, I find the applicants’ efforts were reasonable (s 14E(1)(a) of the Trees Act).

The trees are planted to form a hedge

8. Lilly pillies are commonly grown for screening purposes. Mr Weston stated that he planted the trees to screen structures on the applicants’ land from the respondents’ property, and for privacy. The trees are planted closely so that their foliage forms a screen along the common boundary.

9. Despite the trees being planted at various times over several years, they are all planted closely to form one mass. The intent at the time of planting was to establish the hedge or to extend the hedge; and they now appear as a hedge: see Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215 at [13]–[15]. I am satisfied that the trees are planted so as to form a hedge.

10. Mr Weston wrote that the trees are 2.4–5.05 metres tall, with only one of the 19 trees being less than 2.5 metres tall. The Adamsons described the trees as 2 metres to more than 4 metres tall.

11. I am satisfied that, according to s 14A, Pt 2A of the Trees Act applies to the trees.

Do the trees severely obstruct a view from the applicants’ dwelling?

12. The Court’s jurisdiction is limited at s 14E(2) of the Trees Act:

(2) 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.

13. The trees are approximately 40 metres from the nearest part of the applicants’ dwelling, being the north-facing part at the back of the dwelling.

14. The Adamsons’ application is based on the trees’ obstruction of a view from their dwelling. At question 9 of their application, concerning the nature of the view and its obstruction, they provided the following:

• A photograph taken from within their property, after they purchased it but before they built their dwelling, showing the view to the north including the natural landscape, a thin slice of the ocean along the horizon beyond Scotts Head, and the sky above;

• An aerial photograph of their property and surrounds, showing the location of their dwelling, the respondents’ dwelling, other landscape features and the northerly direction of their view;

• A plan of the rear part of their dwelling showing its north-facing viewing points ‘W1’, ‘W2’ and ‘W3’; and

• Three photographs showing the northern view from W1, W2 and W3.

15. The respondents included in their bundle of documents (Exhibit 2) photographs taken from within the applicants’ property, including photographs taken from W1, W2 and W3. The respondents’ photographs show a broad view is available from the applicants’ dwelling. The view includes: in the foreground the cleared land of the applicants’ property between their dwelling and the common boundary; the applicants’ shed and water tanks; the lilly pillies along the boundary; the tops of bushland trees beyond the lilly pillies; and the sky above. The ocean cannot be seen.

16. In contrast, the Adamsons’ photographs taken from their dwelling are taken with a narrower field of view, perhaps with the camera lens zoomed in to some extent. I do not suggest they have done this to mislead the Court – they have simply focussed on the areas of view obstruction that affect them most. Their photographs do not include their shed and water tanks, but otherwise show closer views of the same elements shown in the respondents’ photographs.

17. The Court should consider the view in its entirety rather than slicing up the outlook into separate components for the purpose of claiming any one view is obstructed: Haindl v Daisch [2011] NSWLEC 1145 at [26]. Nevertheless, some parts of a view, such as the view of the water, might be considered as more valuable than other parts: Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (‘Tenacity’) at [26]. The overall view from the respondents’ dwelling remains expansive, taking in most of the landscape. If a view of the water has been lost, it was a relatively small part of the overall view. I appreciate that the Adamsons might value the water view highly, but it is not clear to me on the adduced evidence that the water view was available from their dwelling. They have provided only one photograph that appears to be their own showing the ocean’s horizon, but it was taken before their dwelling was built and I cannot be satisfied that the photographer was standing where the house now stands. Even if I do accept that the photograph was taken near the back of the yet-to-be-built dwelling, the water view available above bushland trees is so small that it might drop behind the trees if the photographer sat down. If this view has become obstructed by the lilly pillies, I find that the obstruction is not severe. I rely here on the range of terms used at [28] of Tenacity: “negligible, minor, moderate, severe or devastating.” I accept that the lilly pillies are obstructing a view, but on the Tenacity scale the obstruction is moderate at most.

18. The other photograph submitted by the applicants was part of the real estate promotional material for the property prior to their purchase. Slightly more of the water can be seen in that photograph, but to my eye it is taken from a location closer to their northern boundary than the site for their dwelling.

19. I find that the obstruction of the applicants’ view caused by the respondents’ lilly pillies is not severe. This is primarily a result of the trees’ distance from the applicants’ dwelling. From other parts of the applicants’ property, their view appears to be severely obstructed by the trees, but not from their dwelling. It follows that I am prevented at s 14E(2)(a) of the Trees Act from making any orders, and there is no need for me to consider the matters at s 14F, despite the respondents’ extensive evidence and submissions addressed to those matters.

20. I have no doubt that the view obstruction is irksome to the applicants. The hedge imposes negative impacts to the applicants, changing their outlook and altering the character of the landscape. The trees could be maintained at a height that would restore the applicants’ view and maintain screening for the respondents, but the applicants have the misfortune of living with neighbours apparently unwilling to negotiate. Should the applicants find that circumstances change in future, as can happen with tree growth, they can make a new application to the Court, as per the findings in Hinde v Anderson [2009] NSWLEC 1148.

Orders

21. As a result of the foregoing, the Court orders that:

1. The application is refused.

2. The exhibits are returned except for A, 1 and 2.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 08 November 2021