Black v Jeihooni (No 2)

[2024] NSWLEC 13

Land and Environment Court

New South Wales

Medium Neutral Citation:

Black v Jeihooni (No 2) [2024] NSWLEC 13

Hearing dates:

15 December 2023

Date of orders:

23 February 2024

Decision date:

23 February 2024

Jurisdiction:

Class 2

Before:

Pain J

Decision:

(1)   The Appellant’s summons filed 22 May 2023 is dismissed.

(2)   The Appellant is to pay the Respondent’s costs as agreed or assessed.

Catchwords:

APPEAL – appeal of acting commissioner’s decision under Trees (Disputes between Neighbours) Act 2006 (NSW) – no error of law in determination that four palm trees did not form a hedge – appeal dismissed

Legislation Cited:

Interpretation Act 1987 (NSW), s 34

Land and Environment Court Act 1979 (NSW), s 56A

Trees (Disputes between Neighbours) Act 2006 (NSW), ss 14A, 14B, 14D, 14E, 14F

Land and Environment Court Rules 2007 (NSW), r 3.7

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108

Black v Jeihooni [2023] NSWLEC 1193

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

Haindl v Daisch [2011] NSWLEC 1145

Hoy v Coffs Harbour City Council [2015] NSWLEC 128

JET Group Australia Pty Ltd v Environment Protection Authority [2018] NSWLEC 49

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Roden v Bandora Holdings Pty Limited [2015] NSWLEC 191

Smart v Mann [2013] NSWLEC 1179

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Tal Life Pty Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

Tanious v Georges River Council [2016] NSWLEC 142

Tenacity Consulting v Warringah [2004] NSWLEC 140

Weston Aluminium Pty Ltd v Environment Protection Authority [2022] NSWCA 236

Willoughby City Council v Blanc Black Projects Pty Ltd (No 2) [2023] NSWLEC 144

Wisdom v Payn [2011] NSWLEC 1012

Category:

Principal judgment

Parties:

Georgina Louise Black (Appellant)
Samira Jeihooni (Respondent)

Representation:

Counsel:
R Lancaster SC with G Farland (Appellant)
I Hemming SC with L Sims (Respondent)

Solicitors:
Bartier Perry (Appellant)
Mills Oakley (Respondent)

File Number(s):

2023/163242

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 2

Citation:

[2023] NSWLEC 1193

Date of Decision:

26 April 2023

Before:

Sheridan AC

File Number(s):

2022/114051

JUDGMENT

1. The Appellant Ms Black lives at a property on Bayview Hill Road, Rose Bay. The Appellant has commenced an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) in relation to the decision of an acting commissioner (AC) in Black v Jeihooni [2023] NSWLEC 1193. The AC dismissed the Appellant’s Trees Dispute Application seeking orders pursuant to Pt 2A s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act) for the removal of four palm trees on neighbouring land belonging to Ms Jeihooni the Respondent. The AC held inter alia that she did not have the power to make the orders sought as the trees did not form a hedge.

Land and Environment Court Act 1979(NSW)

2. Section 56A of the LEC Act provides:

Part 5 Appeals from the Court

…

Division 2 Class 1-4 proceedings

56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2) On the hearing of an appeal under subsection (1), the Court shall:

(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b) make such other order in relation to the appeal as seems fit.

...

Trees(Disputes Between Neighbours) Act 2006 (NSW)

3. The Trees Act provides relevantly as follows:

Part 1 Preliminary

…

3 Definitions

(1) In this Act:

…

tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.

…

Part 2A Court orders—high hedges that obstruct sunlight or views

14A Application of Part

(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).

…

14B   Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

…

(b)  any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

…

14D Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

…

(b) any view from a dwelling situated on the applicant’s land,

if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following:

(a) require the taking of specified action to remedy the obstruction of sunlight or of a view,

(b) require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view,

(c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape,

(d) require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree,

(e) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a),

(f) authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view,

(g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land),

(h) require the payment of costs associated with carrying out an order under this section.

…

14E Matters of which Court must be satisfied before making an order

(1)  The Court must not make an order under this Part unless it is satisfied:

(a)  that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b)  if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

(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 [not applicable]

(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.

…

14F Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

…

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

…

4. I note that the AC accepted that s 14E(1) concerning reasonable effort to reach agreement was satisfied.

Summons commencing s 56A appeal

5. The Summons commencing the s 56A appeal filed 22 May 2023 identified the following grounds:

Errors in interpretation and application of s 14A

1 The Commissioner erred on a question of law by adopting and applying an incorrect interpretation of the statutory phrase “planted … so as to form a hedge” in section 14A(1)(a) of the Trees (Disputes between Neighbours) Act 2006 (NSW) (Trees Act), which involved the following particular errors:

a. an interpretation that trees do not form a hedge unless the trees “form a continuous barrier or a screen” (at [27]); and/or

b. an interpretation that trees do not form a hedge unless the trees “give the effect of a solid barrier” or “form a continuous screen” (at [31]); and/or

c. an interpretation that inquired into or took into account the subjective intention (including the imputed or inferred intention) of any person who planted or maintained the relevant trees (at [28]-[29]).

2 Further or in the alternative to ground 1, the Commissioner erred on a question of law by taking into account an irrelevant consideration when considering whether the relevant palm trees were “planted … so as to form a hedge” within the meaning of section 14A(1)(a) of the Trees Act, by:

a. having regard to the subjective intention (including the imputed or inferred intention) of any person who planted or maintained the relevant trees (at [28]-[29]); and/or

b. having regard to and applying the form of words used in Recommendation 9(b) of the 2009 Review (at [30]-[31]), which are materially different from the words enacted in s 14A of the Trees Act.

3 The Commissioner erred on a question of law by failing to conclude that, in circumstances where the relevant palm trees were a closely planted line of trees adjacent to a boundary which obscured (in whole or part) lines of sight through the trees, the trees were “planted … so as to form a hedge” within the meaning of section 14A(1)(a) of the Trees Act.

Errors in interpretation and application of s 14E

4 The Commissioner erred on a question of law by adopting and applying an incorrect interpretation of the statutory phrase “severely obstructing a view from a dwelling” in s 14E(2)(a)(ii) of the Trees Act, which involved the following particular errors:

a. incorrectly framing the issue by reference to “the totality of the view” (at [37]), instead of addressing the statutory language; and/or

b. incorrectly framing the issue by reference to whether there was a “severe obstruction of views” (at [37]), instead of addressing the statutory language; and/or

c. failing to address whether the trees concerned “are severely obstructing a view from a dwelling situated on the applicant’s land” within the meaning of s 14E(2)(a)(ii) of the Trees Act.

5 The Commissioner erred on a question of law by failing to conclude that, in circumstances in which it was found that the relevant palm trees “do obstruct views of the Harbour and the Sydney Harbour Bridge” from some locations in the applicant’s dwelling (at [37]), that the trees “are severely obstructing a view from a dwelling situated on the applicant’s land” within the meaning of s 14E(2)(a)(ii) of the Trees Act.

6. The grounds of appeal identified above turn on two central issues for determination:

1. Did the AC err on a question of law in determining that the trees were not ‘planted… so as to form a hedge’ within the meaning of s 14A(1)(a) of the Trees Act? (Issue 1)

2. Did the AC err on a question of law in considering the totality of the view when determining that the trees were not ‘severely obstructing a view from the dwelling situated on the applicant’s land’ within the meaning of s 14E(2)(a)(ii) of the Trees Act? (Issue 2)

Extracts of AC’s judgment

7. The hearing before the AC commenced with an on-site view. Relevant extracts of the AC’s judgment, including the background of the dispute, the AC’s finding and reasons for these, provide as follows:

Background

…

[4] On 6 November 2019 the NSW Land and Environment Court approved Development Application No DA 510/2018 (the Consent) for the demolition of the existing dwelling and the erection of a new dwelling house, swimming pool and landscaping at the Respondent’s property at 4-6 Bayview Hill Road. The Consent approved landscape plans prepared by Greenplan dated 11 October 2019, which proposed planting in the form of Washingtonia Robusta palms with a height at maturity of 12m.

[5] The Consent was subsequently modified on several occasions and the approved landscape plans were replaced with an amended plan prepared by Landmark dated 16 November 2020 and includes Royal palms (Roystonia Regia) which grow to a height of 12-15m. Condition C1 of the Consent as modified imposes various restrictions on the type and height of trees that may be planted, including a condition that the proposed Royal palms on the western section of 4-6 Bayview Hill Road are to be substituted for an alternative species of palm with a maximum mature height of 15m. It is understood that a new landscape plan was issued with the construction certificate to address Condition C1 and that plan identified six Cabbage tree palms to replace the Royal palms (Refer Figure 1). The six trees were subsequently planted in November 2021. Trees 1-4 are Livistona australis (Cabbage tree palms) planted on the southern side of the swimming pool and parallel to the common boundary with the Applicant’s property and Trees 5-6 are Washingtonia robusta (Mexican fan palms) planted on the northern side of the pool.

…

Applicant’s submissions regarding view obstruction

[10] At the Black property, we were taken to the main kitchen dining and living area, two first floor bedrooms and a downstairs secondary living area. We observed the views from the various viewpoints from which they say their view has become obstructed. The views are iconic views to the Sydney City skyline, the Opera House and the Sydney Harbour Bridge. The Applicant contends that she enjoyed uninterrupted views from those areas to the Sydney City skyline prior to the planting of the palm trees as a hedge in her neighbour’s property.

…

Respondent’s submissions

…

[16] On the issue of whether the palms were planted as a hedge, the Respondent’s arborist, Mr Home disagrees with Ms Mackenzie, noting in his evidence the slender trunks with fronds at the top of the trunks and spacing of about 3 metres between the canopies, have not been planted so as to form a hedge. Mr Home notes that the trees have been planted such that the fronds from each tree are at varying heights and are not touching one another, the canopies have a void of about 3 metres between the canopies and the tree species and spacings as planted are ineffective at creating consistent screening at the boundary. Mr Home provided evidence that the heads of the palms will never connect due to the 3-3.5m spacing between the heads of the trees and that the neighbours can see through the palms as there is no lower canopy.

…

Do the trees form a hedge?

[23] Part 2A is the relevant part of the Trees Act that gives the Court the power to make orders concerning high hedges that obstruct views. However, Pt 2A only applies in the circumstances specified in s 14A of the Trees Act, which provides, at (1):

14A Application of Part

(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).

[24] There is no argument between the parties that the palm trees are higher than 2.5m above existing ground level, which satisfies s 14A(1)(b). However, the parties disagree on the issue of whether the trees are planted to form a hedge. I am assisted by Chief Judge Preston’s discussion of Pt 2A of the Trees Act in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192. At [28], his Honour found that s 14A(1)(a) requires “…that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present”.

[25] In many cases, it is known whether the trees were originally planted to form a hedge, especially when one of the parties planted the trees. In many cases, it is also obvious from the trees’ appearance whether they were planted to form a hedge or not.

[26] Mr Farland, counsel for the Applicant, argued that the fronds of the palms form a continuous screen, are planted in a regular linear fashion adjacent to the boundary, are of a similar age and all trees were planted at the one time and therefore form a hedge. On the other hand, Mr Hemmings, counsel for the Respondent, argued that the trees are not planted to form a hedge, but were planted as feature trees to frame the house and pool, provide shade and amenity around the existing swimming pool and to comply with the Council approved landscape plan, for the recently constructed house and swimming pool on the Respondent’s property. Mr Hemmings argues that whilst the palms are planted in a row, they have been planted to follow the line of the swimming pool and to provide landscape amenity, privacy and shade for people using the pool and garden.

[27] I find the trees are not planted to form a hedge for three reasons. Firstly, the palm trees are not planted close enough together to form a continuous barrier or a screen.

[28] Secondly, I find it unlikely that someone attempting to establish a hedge or screen would have planted palm trees which characteristically have a straight slender trunk with fronds at the top of the trunk. It is more likely, as suggested by Mr Hemmings, that these were planted as specimen trees to provide amenity for users of the swimming pool.

[29] Thirdly, there is no sign that these trees have ever been maintained by the Respondent as a hedge. In fact, the Respondent advised that they annually prune the fronds so that dead fronds and fruit/seeds do not drop into the pool or the neighbour’s yard. While there is no strict definition of a hedge in the Trees Act, one of the defining features of a hedge is that it is a row of trees or plants, generally maintained to provide a screen to a certain height. The Oxford Dictionary defines a hedge as “a row of bushes or small trees planted close together, usually along the edge of a field, garden or road”.

[30] Furthermore, the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (‘the 2009 Review’) recommended (Recommendation 9(b)) that the scope of Pt 2A of the Trees Act be limited. My emphasis is added below in italics.

“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.”

[31] The description of trees that give the effect of a solid barrier aptly suits many of the cypress, bamboo and other hedges that have come to the Court and for which orders have been made, but it does not describe the six palm trees in the Respondent’s property, which are more like feature trees around the swimming pool, growing in a row, with tall slender trunks and fronds at the top. The subject palm trees certainly do not give the effect of a solid barrier or screen and are not planted close enough together to form a continuous screen.

[32] Because I find that the trees are not planted so as to form a hedge, they are not trees to which Pt 2A of the Trees Act applies, and I cannot make any orders for them.

[33] Even if I am wrong about whether the trees form a hedge under s 14A(1)(a), the next step is to assess the severity of the obstruction of all or any of the views from the Applicant’s dwelling, as a consequence of any or all of the trees.

View obstruction not severe

[34] According to s 14E(2)(a)(ii), the Court must not make an order under Pt 2A of the Act unless it is satisfied that the trees concerned are severely obstructing a view from the Applicant’s dwelling.

[35] Section 14E(2)(a) states:

14E Matters of which Court must be satisfied before making an order

…

(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…

[36] From my observations at the onsite view, I noted that the vast majority of views from the Applicant’s dwelling are still available, and as Moore SC and Hewett AC found in Haindl v Daisch [2011] NSWLEC 1145, the totality of the views must be considered.

[37] I accept the Respondent’s town planning expert’s observations that the scope of each view is large and that the palms presently obstruct very little of the views. Some fronds of the palms may obstruct small parts of views from the Applicant’s dwelling. For example, my observations on site were that the palms do obstruct views of the Harbour and the Sydney Harbour Bridge from several seats at the dining room table or from one particular view from the kitchen, however the totality of the view, including views of Sydney Harbour, the Harbour Bridge and Opera House from other parts of the dining room table, dining room, living room, kitchen, secondary living areas and bedrooms are retained. From my observations, I do not find that there is a severe obstruction of views here.

[38] I note that the Applicant is concerned that the trees have been recently pruned and that when the fronds re-grow their view will be further impacted by the palms. However, the Applicant’s concerns regarding future obstruction of their views does not give the Court jurisdiction to make orders. As Fakes C discussed at [14] in Tooth v McCombie [2011] NSWLEC 1004 the obstruction must exist at the time of the hearing.

[39] As a result, the application must be dismissed. If in future the Applicants find that a severe obstruction occurs and that the trees form a continuous screen, that would be a change in circumstances and the Applicant would be able to make a new application to the Court, as described in Hinde v Anderson and anor [2009] NSWLEC 1148.

8. I note that six trees (1-4, 5 and 6) were originally the subject of the Trees Dispute Application before the AC. The Appellant did not press for the removal of trees 5-6 in the hearing before me. This s 56A appeal therefore concerns trees 1-4 planted in a row on the southern side of the Respondent’s swimming pool parallel to the common boundary with the Appellant’s property.

Evidence on appeal

9. The Appellant tendered the Court Book (Ex A). The following documents were referred to in Ex A:

1. Summons commencing appeal filed 22 May 2023, extracted above in [5];

2. AC’s decision of 26 April 2023, relevantly extracted above in [7];

3. Hearing transcript of 22 November 2022, referencing the oral evidence of Mr McDonald town planner (called by the Appellant) as to the ‘continuous screen’ effect of the palm trees, extracted below in [11];

4. Trees Dispute Application filed 20 April 2022, extracted below in [12];

5. Witness statement of the Appellant dated 22 August 2022, with reference to photographs taken from the Appellant’s dining room and second bedroom of the outlook towards the Respondent’s property;

6. Arboricultural report prepared by Ms Mackenzie horticulturalist (called by the Appellant) dated 22 August 2022 (Mackenzie 1), with reference to an aerial image dated 17 May 2022 showing the location of the subject palm trees, opinion evidence as to the degree of regularity and linear arrangement of palm trees as identification of a hedge, photographs taken from the Appellant’s kitchen and dining area of the outlook towards the Respondent’s property;

7. View loss report prepared by Mr McDonald dated 2 September 2022 (McDonald 1);

8. Further arboricultural report prepared by Ms Mackenzie dated 15 November 2022 (Mackenzie 2), with reference to photographs taken from the Appellant’s dining table of the subject palm trees subsequent to pruning;

9. Witness statement of the Appellant dated 16 November 2022;

10. Further view loss report prepared by Mr McDonald dated 15 November 2022 (McDonald 2), with reference to photographs taken from the Appellant’s kitchen and dining area of the outlook towards the Respondent’s property;

11. Appellant’s letter of offer dated 21 November 2022;

12. View loss report prepared by Mr Mead town planner (called by the Respondent) dated 20 October 2022;

13. Arboricultural report prepared by Mr Home horticulturalist (called by the Respondent) dated 20 October 2022;

14. Further view loss report prepared by Mr Mead dated 18 November 2022; and

15. Appellant’s submissions before the AC dated 21 November 2022, extracted below in [13].

10. The Court was shown photographs presented to the AC by the Appellant showing the palm trees on the Respondent’s property as viewed from certain locations on the Appellant’s property. The different heights of the palm trees (low, high, low, high) were identified orally by the Respondent’s counsel (Tcpt 15 December 2023 p 31(31-41)).

Hearing Transcript of 22 November 2022

11. The transcript of the hearing before the AC on 22 November 2022 as referred to in the parties’ arguments is extracted as follows (Tcpt p 32(43-50)-p 33(1-26)):

…

COMMISSIONER: Just one more question while we're talking about your evidence. In terms of your evidence, do you believe trees 1 to 4 form a hedge and why?

WITNESS MCDONALD: Well it's probably more for the horticultural – the arboriculturists, I beg your pardon. I think they - from the viewing point and - you - again you saw today the various viewing points, commissioner – they form a continuous screen. The combination of the foliage and the trunks of trees 1 to 4 from that viewing point do form a linked and continuous screen.

COMMISSIONER: And so you--

WITNESS MCDONALD: Yes.

COMMISSIONER: --resolve that it--

WITNESS MCDONALD: Well--

COMMISSIONER: --in your view it is a hedge?

WITNESS MCDONALD: It performs the function of a hedge because of its screening effect. But I'm saying that as a lay planner but--

HEMMINGS: Can I ask--

WITNESS MCDONALD: --the analogy I would use is that you'd be familiar with louvres are often used on windows either in the - or on balconies - in the horizontal or sometimes in the vertical, or in the horizontal sitting below sill heights. Now those louvres have gaps between them to allow daylight or possible views through but depending on your viewing point, they form a solid screen. And that's the analogy I'd use in this case. From this viewing point, if you're standing under them or in front of them, there are huge gaps between the trunks but from the viewing point within this dwelling, they do form a continuous screen.

…

Trees Dispute Application

12. The Trees Dispute Application filed by the Appellant on 20 April 2022 states in part:

THE ORDERS THE APPLICANT IS ASKING THE COURT TO MAKE:

Proposed orders for Part 2A: Applications High Hedges

1. Within 60 days from the date of these Orders, the Respondent is to engage a suitably licensed tree removal specialist with all necessary insurances to remove Trees T1-T6 from the Respondent's property in accordance with section 14D(2)(d) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Act).

2. Any replacement tree planting is to be restricted to species that are not known to grow in excess of 8 metres above natural ground level when measured from the location of the existing Trees T1-T6.

3. Any replacement trees will be pruned within 2 weeks of any written request made by the Applicant or a person acting on behalf of the Applicant to a maximum height of 8 metres above natural ground level.

4. All costs associated with works required pursuant to Orders 1, 2 and 3 above are to be borne by the Respondent pursuant to section 14D(2)(h) of the Act.

5. The Respondent is to pay the Applicant's costs of the proceedings.

…

9. What is the nature and extent of each view from your dwelling affected by the obstruction by the hedge and the nature and extent of any remaining view?

V1 - Entry Level Dining/Kitchen - there is a severe loss of harbour views including the Sydney Harbour Bridge and Opera House and Fort Denison. There are also whole or substantial loss of views of Shark Island, Bradley's Head, North Sydney CBD skyline, Kirribilli Point and Milson's Point skyline. The views are from the rear boundary which comprise the only outlook opportunity. The views obstructed are from both sitting and standing positions.

V2 - Bedroom 2 - there is a severe loss of harbour views including the Sydney Harbour Bridge and Opera House and Fort Denison. There are also whole or substantial loss of views of Shark Island, Bradley's Head, North Sydney CBD skyline, Kirribilli Point and Milson's Point skyline. The views are from the rear boundary which comprise the only outlook opportunity. The views obstructed are from both sitting and standing positions.

…

Attachment 3 includes photographs purporting to provide evidence of partial view loss.

Appellant’s submissions before AC

13. The Appellant’s submissions before the AC dated 21 November 2022 are relevantly extracted as follows:

44. In Ms Mackenzie’s opinion the degree of regularity and arrangement “identifies this row of palms as a hedge and satisfies subsection a and b of section 14A(1)”. (Mackenzie 1 at 35)

…

50. In Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108, another decision of Commissioner Fakes, the Commissioner held (after addressing a number of decisions on the topic):

“[29] Consistent with findings in other matters involving rows of palms and the generally purposive approach taken by the Court in these matters, I am satisfied that the 14 palms the subject of the two applications are trees to which Part 2A applies. Although the landscape as currently planted is not as indicated on the approved landscape plan, the palms are planted in a curvilinear arrangement and appear to have been installed in the same planting event. While the intent of whoever installed the landscape cannot be interrogated, it is clear from the landscape plan that a staggered, but generally linear arrangement was intended. For whatever reason, the two Banksias and the unidentified tree species (possibly another Banksia) were omitted and replaced by Kentia Palms. Although tree 14 is at a wider spacing than other trees in the row, it is not so radically different to warrant consideration as an individual specimen. All trees are in excess of 2.5m tall.”

…

52. That screen effect is readily apparent from the Applicant’s Property (For example, Annexure A to McDonald 2). Further that effect is a continuous one which provides an effective obstruction when viewed from the dining room and kitchen of the Applicant’s Property.

53. In summary:

a. The trees are planted along the common boundary with the Applicant’s property.

b. Although the trunks may be slender, the fronds are not.

c. The palms have been planted in a regular pattern and arrangement.

d. The palms were planted at the same time.

e. They were not self-sown (i.e. they were deliberately planted).

f. When planted they were super mature, so had an immediate (and devastating) (McDonald 1 at [68]) hedging and screening effect from the Applicant’s Property.

g. As Mr Mead confirms the palms do form a screen and do have a characteristic as such i.e. as a screen. (See fn 50: For example, Arnold v Persson [2022] NSWLEC 1270)

h. By providing a visual barrier (created by the line of palms) the trees have a continuous screening effect.

i. The approved landscape plan (Annexure F to McDonald 1, CB322-323 (Development Consent)) shows a hedge of palms along the common boundary. Each tree is linked so the design intent represented on the page is of a single continuous screen.

…

Principles applied in s 56A appeal

14. I outlined principles relevant to determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [7]-[11] as follows:

[7] It is important to state at the outset the principles which apply in appeals under s 56A of the Court Act in matters of this kind. Principles which have been well recognised as applying to s 56A appeals are correctly stated in the Council’s submissions and these were drawn on and further developed in this and the following paragraphs. An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner’s decision cannot be the subject of a s 56A appeal.

[8] An appeal under s 56A is “on a question of law” not limited, however, to “an error of law”: ISPT Pty Ltd v Valuer General [2009] NSWCA 31; (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12].

[9] A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71].

[10] The judgment should be read on the basis that the Commissioners and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79].

[11] An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

15. I also adopt the following principles relevant to the determination of such appeals as conveniently summarised by Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 at [10] as follows:

[10] …

…A “verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law”: Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 at [57];

…

fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]. A party is bound by the way it conducted its case at the hearing: Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]-[55] and Davis at [75]-[77].

16. I will apply these principles as relevant in this judgment as indicated below.

Issue 1: Errors in interpretation and application of s 14A(1)(a)

17. The parties accept that the four palm trees are higher than 2.5m and that s 14A(1)(b) of the Trees Act is satisfied. At issue is whether the AC correctly as a matter of law considered the trees were ‘planted … so as to form a hedge’ as referred to in s 14A(1)(a). Satisfaction of the matters in s 14A is necessary to confer jurisdiction on the Court to determine the matter. If the trees are not a hedge for the purposes of the Trees Act the Court does not have jurisdiction to determine the matter. The AC identified her reasons why the plants were not planted to form a hedge at [27]-[31] of the decision, extracted above in [7].

Appellant’s submissions

18. The Appellant contends that the Commissioner’s decision involved the following errors:

1. an interpretation that trees do not form a hedge unless the trees ‘form a continuous barrier or a screen’. It is clear from the context that the Commissioner used the word screen in the same sense as the word “barrier”, that is, a planting that blocks any vision through the area;

2. an interpretation that trees do not form a hedge unless the trees ‘give the effect of a solid barrier’ or ‘form a continuous screen’; and

3. an interpretation that inquired into or took into account the subjective intention (including the imputed or inferred intention) of any person who planted or maintained the trees (at [28]-[29]).

19. The AC formed a view at [27]-[29] that a hedge must be a solid barrier, impenetrable to the gaze and as the arrangement of the foliage on these plantings could not amount to the statutory definition of hedge she could not make any orders (at [32]). This finding is incompatible with the ordinary English meaning of a hedge which need only be substantial, not impenetrable. The statutory meaning of a hedge does not fall away merely because one is able to glimpse views of water through it.

20. The words planted and hedge are not defined in the Trees Act. The meaning of planted and hedge were considered by the Court in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [17], [28], [37], [39]-[41], Wisdom v Payn [2011] NSWLEC 1012 at [45], Smart v Mann [2013] NSWLEC 1179 at [10], and Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108 (Barnes v Loveridge) at [29]. In Barnes v Loveridge the curvilinear arrangement of palm trees was found to be a hedge. These authorities do not construe the phrase ‘planted… so as to form a hedge’ as mandating that the trees ‘must form a continuous barrier or screen’ and ‘give the effect of a solid barrier.’

21. Consistent with the authorities cited above, a hedge will be formed when trees are planted sufficiently close together in a line adjacent to a boundary which obscures a line of sight in whole or in part (Appellant’s submission to AC par 42, referencing the Respondent’s approved landscape plan which confirms the orderly nature of the planting). The ordinary meaning of the term hedge includes trees planted generally in a line which allows pockets of vision through overlapping foliage.

22. The Respondent submitted below in [33] that as the fronds of the palms will never connect the trees cannot be a hedge, however, Wisdom v Payne provides that a solid barrier or continuous screen need not be required for trees to form a hedge.

23. In oral evidence, Mr McDonald explained the use of the term ‘continuous screen’ by comparing the palm trees to louvres now commonly utilised on windows or balconies that allow one to see through for sunlight inter alia, but depending on a person’s perspective can form a continuous screen (above in [11]).

24. In written submissions the AC was criticised for referring to the definition of hedge in the Oxford Dictionary at [29]. Pursuant to s 34 of the Interpretation Act 1987 (NSW) there is no error in having regard to a definition of hedge in a dictionary, however, the definition does not support the limited meaning the AC applied. Such a definition is to be treated with caution pursuant to the authorities in Tal Life Pty Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [80] and Weston Aluminium Pty Ltd v Environment Protection Authority [2022] NSWCA 236 at [33]. I note that this criticism was not pressed in oral submissions. I also note that the dictionary definition provides little assistance in resolving the issues in this appeal.

25. The AC erred in taking into account the form of words used in the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (2009 Review) recommendation 9(b) to the effect that the scope of Pt 2A of the Trees Act be strictly limited in jurisdiction to hedges which ‘are both high and give the effect of a solid barrier’ inter alia. It is impermissible to place such reliance upon extrinsic material of an uncertain source for the purpose of statutory interpretation as the AC did at [31] which is plainly to be read together with [27].

19. The AC erred by taking into account the irrelevant consideration of the subjective intention of the Respondent at the time of the planting of the palm trees. At [28] the AC found that the palms were planted for privacy and shade and not for the purpose of creating a ‘solid screen’. The AC made an error of law in imputing a subjective intention based on the Respondent’s counsel’s submission, as opposed to evidence from the Respondent, as to why a type of tree was planted.

20. In Johnson v Angus at [39] Preston CJ observes that s 14A(1)(a) requires an examination of both the past and present to determine whether trees are planted so as to form a hedge. It does not follow that reference should be made to the subjective intent at the time of planting as this would be sufficient to defeat any application under Pt 2A of the Trees Act, rather it is the objective result of the planting that needs to be considered.

21. Contrary to the Respondent’s submission below in [38] the finding of an error of law under s 14A of the Trees Act for any of the reasons at [27]-[29] of the AC’s findings is substantial and would infect the whole of the decision, warranting relief.

Respondent’s submissions

29. The issues in dispute are jurisdictional, to the effect that the Appellant must succeed on both grounds in order for the AC’s decision to be set aside. To succeed on Issue 1, the Appellant needs to establish that the AC adopted one or more of the alleged interpretations above in [18(1)], that the AC took into account the subjective intention (including the imputed or inferred intention) of any person who planted or maintained the relevant trees (at [28]-[29] of the AC’s finding), and that it would be a legal error to do so.

30. The AC provided three reasons for her finding at [27]-[29], concluding that the palm trees are not planted to form a hedge without assigning particular weight nor indication that any one reason was determinative. The AC’s reasoning included that the palm trees are not planted close enough together to form a continuous barrier or a screen (at [27]).

31. In Johnson v Angus Preston CJ held at [40] that whether trees are sufficiently close is a relevant criterion to the determination of whether the trees are planted so as to form a hedge. Whether the trees are sufficiently close will depend on the species of tree planted, the age of the tree, the health and growth of the tree and the scale of the landscape. Preston CJ made the finding at [28] that the issue of whether the trees are the subject of maintenance becomes important to the issue of whether or not they form a hedge. There must be enquiry as to the purpose of planting at the time of planting (at [29], [37]), ‘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.’ Haindl v Daisch [2011] NSWLEC 1145 at [37] adopts the definition of hedge as discussed in Wisdom v Payn at [45], [46] being ‘a degree of regularity and arrangement, in a linear fashion, of the trees being considered.’

32. At par 48 of the Appellant’s submission before the AC, reference to Barnes v Loveridge was made in support of the use of palm trees to form a hedge. The Respondent does not submit palm trees can never form a hedge, but that intention is nonetheless relevant.

33. At [16], the AC recorded the Respondent’s arborist Mr Home’s evidence that the heads will never connect as the plantings are spaced 3-3.5m apart between the heads of the trees and are at differing heights (low, high, low, high) which will continue to grow at consistent rates.

34. Consistent with the authority in Johnson v Angus, the AC considered the characteristics of the species of palm trees ‘which characteristically have a straight slender trunk with fronds at the top of the trunk’ (at [28]), leading to the finding that the trees ‘certainly do not give the effect of a solid barrier or screen and are not planted close enough together to form a continuous screen’ (at [31]). It is not sufficient to look at trees at the date that the Class 1 application is heard. The state of the trees requires examination in both the past and the present, thus there is no error in the AC’s reasoning at [28] of the decision.

35. The use of the terms ‘solid barrier’ and ‘continuous screen’ does not indicate that the AC is applying this threshold as a statutory test but is rather in direct response to the Appellant’s written and oral submission that readily utilised the term screen or screening.

36. In Johnson v Angus Preston CJ at [24], [28] undertook a careful analysis of the phrase ‘planted… so as to form a hedge’ finding it relevant to consider the purpose of a planting the trees, both at the time of planting and whether that continues to the present. There is no authority to support a finding that it is irrelevant to consider the subjective intention of the person planting (or maintaining) trees to inform a conclusion about the purpose of the planting. Evidence of the subjective intention may be relevant and probative of that inquiry.

37. In any event, the AC’s finding as to the purpose of the planting at [28] does not consider the subjective intention of the person who planted the trees. It is based on inferences from the characteristics of the trees (straight slender trunk with fronds at the top of the trunk), their landscape context (to provide amenity for users of the swimming pool) and maintenance (to avoid dead fronds and fruit/seeds from dropping into the pool or the neighbour’s yard), as was available in the evidence.

38. The term furthermore is utilised at [30] where the 2009 Review is referred to, indicating that any reading of the decision will find the ratio at [27]-[29], not including consideration of later extrinsic material. Any error must vitiate the judgment on all three grounds in order to vitiate the decision.

Consideration

39. The AC identified three reasons for finding that the trees were not planted to form a hedge for the purposes of the Trees Act at [27]-[29], putting aside whether observations in [30] are also part of the AC’s reasoning, which I discuss below. The Appellant alleges legal error in relation to all the reasons and says a finding of error in any of these will vitiate the AC’s decision. The Appellant alleges that the AC relied on an impermissible test that a hedge must be a continuous barrier or screen at [27], and that the subjective intention of the person planting and/or maintaining the trees was irrelevant, at [28]-[29].

40. It is necessary to state that the merits of the AC’s decision cannot be reviewed in this appeal. The AC had the benefit of attending the relevant properties to see the relevant trees in the company of the parties and their respective experts. The expert evidence before the AC differed in relation to whether a hedge existed. In the hearing before the AC the conclusions of the arborists regarding the arrangement and spacing of the trees and the relationship of the vegetation conflicted. In Ms Mackenzie’s opinion the planting of the four palms at a close (in her opinion) distance of 3 to 3.5m between them was consistent with their forming a hedge. In contrast, Mr Home considered that the spacing of the trees, the difference in height of the heads of the palms (low, high, low, high) and therefore the location of the fronds at different heights with a spacing of 3m did not form a hedge. The way the parties presented their cases to the AC informs the assessment of the AC’s reasons and whether there are the submitted legal errors.

41. The summons commencing the appeal is extracted above in [5]. The error of law arising first is described as applying an incorrect interpretation of the relevant statutory phrase.

42. There is no definition of ‘planted…so as to form a hedge’ in s 14A(1)(a) of the Trees Act. Consideration must be had to the meaning of the words ‘planted… so as to form a hedge’ in accordance with well-established principles of statutory construction, considering their plain, ordinary meaning in the context of the provision: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at 491-494; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 cited in Roden v Bandora Holdings Pty Limited [2015] NSWLEC 191 at [42]. It must be said that in the absence of a statutory definition of hedge there is not a lot of context to consider. A number of cases were referred to as I address below. I observe that whether a hedge within the description in the Trees Act exists depends very much on the particular circumstances of each case as there are a number of variables to consider. These will inevitably vary between cases so that seeking to extrapolate from reasoning in other cases is not of much assistance in this case.

‘Hedge’

43. The AC was considering a matter on the basis of the issues and evidence provided by the parties. The AC summarised the parties’ submissions at [26] which includes the submission of the Appellant’s counsel that the fronds of the palm trees form a continuous screen. No criticism was made of her summary.

44. In Wisdom v Payn at [45], the ‘degree of regularity and arrangement, in a linear fashion’ of trees was considered in determining whether a hedge existed. In Johnson v Angus at [41] Preston CJ identified the many variables that may be in play as follows:

[41] But 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 in its own terms and in the context of Part 2A, does not so 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 the trees are all of one species or different 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.

45. Palm trees have been found to form hedges in some cases as the Appellant emphasised, see Smart v Mann at [10] and Barnes v Loveridge at [29]. In Barnes v Loveridge 14 palms planted in a ‘staggered, but generally linear arrangement’ were found to be a hedge. Smart v Mann considered ‘closely spaced planting of clumping and other palms’ to be a hedge. As already stated each of those cases of necessity was determined on its particular facts.

46. The Appellant criticised the first of the three reasons given by the AC at [27] because she referred to the trees not creating a continuous barrier or screen. The criticism focussed on the use of the words continuous screen which the Appellant submitted were intended to mean an impenetrable barrier. Continuous and impenetrable are not the same.

47. The Appellant contended that the spacing is close, the Respondent contended that it is not close as reflected in their respective experts’ opinions. The relationship of foliage of trees planted in a linear manner is likely to be relevant to the question of whether there is a hedge. The Appellant contended that the foliage connects so as to form a screen, the Respondent contended that it did not as the crowns of the palm trees are arranged low, high, low, high so that the crowns are not all at the same height. The term continuous screen reflects the submissions of the Appellant. Screening of her view by the fronds and trunks of the palm trees is why the Appellant commenced the Trees Dispute Application. The basis for the Appellant’s submission that continuous screen really means an impenetrable barrier is unstated, and is assertion alone in my view. In any event the use of the word continuous does not imply impenetrable. The two words are not synonymous.

48. The criticism of the AC’s reasoning is impermissibly applying a fine-toothcomb approach in relation to [27]. The AC considered the distance between the trees and the relationship of the foliage, both appropriate matters to consider in her determination. No error of law is demonstrated.

‘So as to form’

49. At [28]-[29] the AC set out her further findings that palm trees as a species are unlikely to be used as a hedge tree and identified that the Respondent’s palm trees have not been maintained as a hedge. The next error of law alleged in the AC’s reasons is that the AC impermissibly took into account in a legal sense the subjective intention of the Respondent which was submitted to be inconsistent with the statutory context of ‘so as to form a hedge’.

50. In Johnson v Angus Preston CJ thoroughly considered the phrase ‘so as to form a hedge’ in the context of the Trees Act as follows:

[24] The phrase ‘trees that are planted’ is followed by the adverb clause of purpose ‘so as to form a hedge’. The subordinating conjunction ‘so as’ indicates a relationship of purpose between the phrases ‘trees that are planted’ and ‘to form a hedge’. The idiom ‘so as to’ means ‘in order to’ or ‘with the result or purpose of’ (Macquarie Dictionary). The idiom ‘so as to’ is always followed by the infinitive of a verb. In this case, the idiom is followed by the infinitive of the verb ‘form’. The meanings of the transitive verb ‘to form’ include ‘to make or produce; to serve to make up, or compose; serve for, or constitute’ and ‘to place in order; arrange; organise’ (Macquarie Dictionary).

…

[37] …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 that state of affairs of being planted so as 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.

…

51. The Appellant’s submission that only objective criteria can inform whether trees form a hedge submitting that the subjective intention of a landowner (or whoever owns the trees) can never be relevant is not accepted and is inconsistent with the finding in Johnson v Angus. The subjective intention of the person who planted trees is not necessarily definitive of the question of whether trees form a hedge but can permissibly form part of the factual matrix the Court considers in its determination. Activities such as planting and maintenance of trees require human agency to be carried out. Such actions are very likely to be informed by a purpose, and there is no error of law in the Court being informed about that purpose.

52. I note however that subjective intention was not applied by the AC in her reasoning in any event as the Respondent identified above in [37]. The AC was well able to draw inferences about the characteristics of the trees, their landscape context and the maintenance regime. This criticism adopts an impermissible fine-toothcomb approach to the AC’s judgment.

53. The Appellant also criticised the AC’s reference to the 2009 Review at [30] as impermissibly construing the statute on the basis of irrelevant material (summons commencing the appeal at par 2(b)). The first word of [30] is ‘Furthermore…’ which suggests that the paragraph identifies a matter that is not part of the AC’s principal reasons at [27]-[29]. Consequently, if any error did arise from consideration of the 2009 Review it is not material and the judgment as a whole would not be vitiated by that reference. I note that s 14I of the Trees Act requires the responsible Minister to review the operation of Pt 2A within a specified timeframe. Any report of the review outcome must be tabled in each house of Parliament within a specified timeframe. I do not know if the 2009 Review is such a report. I do not need to resolve finally whether reliance on the 2009 Review was legally impermissible and would need further argument in order to understand the context in which the 2009 Review came before the AC in order to resolve that issue. For example, one of the parties presumably provided it to the AC and submissions may have been made about its application. Before ruling finally an understanding of the context in which the AC was asked to consider the 2009 Review would be needed.

54. In light of my findings above I do not need to resolve whether the AC’s reasons at [27]-[29] are to be viewed in isolation (so that if one reason is valid the decision is not vitiated) or as a whole (all reasons must be valid in order not to vitiate the decision).

55. No error of law has been established in relation to the AC’s finding that there is no hedge on the Respondent’s land in the terms identified in the summons namely applying an incorrect interpretation of a statutory phrase in prayers 1(a) and (b) and failing to take into account an irrelevant consideration of subjective intention in prayers 1(c) and 2(a). Accordingly s 14A(1)(a) is not satisfied and the Court did not have jurisdiction to consider the Trees Dispute Application.

56. Another ground of the appeal was also argued. It does not need to be determined but as argument was heard this will be considered.

Issue 2: Errors in interpretation and application of s 14E(2)(a)(ii)

57. The second issue in contention is whether the AC erred on a question of law in considering the totality of the view from the Appellant’s land when determining that the trees were not ‘severely obstructing a view from the dwelling situated on the applicant’s land’ within the meaning of s 14E(2)(a)(ii) of the Trees Act. Paragraphs [36]-[38] of the AC’s judgment considering the issue of views are extracted above in [7].

Appellant’s submissions

58. The AC erred on a question of law by incorrectly interpreting the phrase ‘severely obstructing a view from a dwelling’ in s 14E(2)(a)(ii) of the Trees Act at [36]-[37] by looking to the totality of the available views. This approach takes into account views from all nominated areas as rolled into one as opposed to addressing the two viewing points the subject of the Trees Dispute Application (kitchen and dining room, second bedroom) (extracted above in [5]).

59. The term view is not defined in the Trees Act. The phrase ‘severely obstructing a view from a dwelling’ in s 14E(2)(a)(ii) is also found in ss 14B(b), 14D(b). None of these provisions suggest that the intention of the Trees Act is for a view to constitute the totality of what can be seen. A particular room may have multiple viewing points and provided that one of these are severely obstructed, the jurisdiction of the Court is enlivened. The statutory language does not permit a walkaround the entire dwelling to determine that the ‘vast majority of views from the Applicant’s dwelling are still available’ as the AC found at [36].

60. The words ‘a view’ in the context of s 14E(2)(a)(ii) means a view from a dwelling situated on an applicant’s land. Each particular view must be considered to determine the severity of the obstruction. The AC’s approach is to allow potentially significant obstructions from one or more specific locations without intervention by the Court, unless the totality of the view is severely impacted.

61. In Tenacity Consulting v Warringah [2004] NSWLEC 140 Roseth SC stated at [26] that iconic views, such as the Sydney Harbour Bridge, and whole views, as opposed to partial views, are more highly valued. The Appellant’s views of Sydney Harbour and its icons were uninterrupted prior to the planting of the palm trees.

62. The AC erred in her application of s 14E(2)(a)(ii) by finding at [37] that the palm trees ‘do obstruct views of the Harbour and the Sydney Harbour Bridge’ but failing to conclude that the palm trees are ‘severely obstructing a view’ from the Appellant’s dwelling.

58. The Respondent wrongly submitted that the later paragraphs of the AC’s decision should be read through the lens of the Appellant’s submission as summarised by the AC at [10] and in light of s 14F(q) of the Trees Act. Section 14F(q) does not undo the rest of the statute. There is no authority for such a proposition.

Respondent’s submissions

64. The Appellant alleges that the AC adopted and applied an incorrect interpretation of ‘severely obstructing a view from a dwelling’ in s 14E(2)(a)(ii). The parties accepted during the course of the hearing before the AC that a view is the totality of the outlook from any viewing point: Haindl v Daish at [21]. Where one has chosen a viewing location, one cannot break that view into component parts and must consider it in totality: at [25]-[26].

65. The language in the statute is ‘a view from a dwelling’. To accept the Appellant’s interpretation, the Court would need to insert additional words into the statutory language: ‘a particular view’ or ‘a view from a specific location within a dwelling’, a strong indication that the Appellant’s meaning does not accord with the plain meaning of these words.

66. An important aspect of the statutory context is that it has the potential to interfere with a neighbour’s property rights. The purpose (or function) of the statutory test in s 14E is to limit those very significant impacts that may arise from that loose or broad reading of that language.

67. The Appellant utilises the totality of the views in the opposite way to the AC’s correct application. For example, a severe impact on the view from the viewing location of the second dining table chair from the left but not from the third is not severe. To pick and choose viewing points is to ‘slice up’ the view, contrary to Haindl v Daish. The view from the dining room is made up from a whole series of different views that make up the totality to be considered from the viewing location, relevant to the determination of this Court’s jurisdiction.

68. The Appellant’s contention that the AC incorrectly proceeded as though there is only one, overall view to be assessed under the statute is not a fair reading of the decision. At [37] the AC referred to ‘each view’ and then later refers to ‘the views’, proceeding on an assessment of each view then expressed collectively (having assessed that ‘each view’ was not severely obstructed).

Consideration

69. The summons commencing the appeal is extracted above in [5]. The issues in this ground are described as failing to apply a correct statutory test, and in the alternative taking into account an irrelevant consideration, in relation to the subjective intention (including the imputed or inferred intention) of any person who planted or maintained the relevant trees.

70. Haindl v Daisch confirms that a viewpoint (for example, a dining room) must be considered as a whole and not as different views within that viewpoint, as both parties accepted. The Appellant nominated two viewpoints in the Trees Dispute Application (see above in [12]) and submitted that in order to comply with s 14E(2)(a)(ii) the AC had to first consider and provide reasons showing that she had considered those two viewpoints. Only then was the AC able to consider views generally from the dwelling as provided by s 14F(q). The Appellant submitted the AC’s reasons showed error because she referred to the totality of views.

71. In her judgment at [10] the AC set out the areas of the Appellant’s property that she was taken to being ‘… the main kitchen dining and living area, two first floor bedrooms and a downstairs secondary living area.’ She then stated ‘We observed the views from the various viewpoints from which they say their view has become obstructed.’ The AC identified that the views are iconic and that the Appellant used to enjoy uninterrupted views from those areas before the Respondent planted the palm trees. I note that the areas visited on the view as listed in the judgment appear to be more numerous than the two locations identified in the Trees Dispute Application. The AC’s reasoning about whether the view obstruction was severe is set out at [34]-[37], with [38] referring to pruning. At [34]-[35] the AC refers to s 14E(2)(a) and sets this out. At [36] Haindl v Daisch was relied on, stating that ‘…the totality of the views must be considered.’ At [37] the Respondent’s town planning expert’s opinion that the scope of each view is large and the palms presently obstruct very little of the views is recorded.

72. A fair reading of these paragraphs which include multiple references to views suggests that the AC did consider the totality of each separate view within the AC’s dwelling, consistent with Haindl v Daisch and I agree with the Respondent’s submissions in that regard. The AC framed her discussion by reference to s 14E(2)(a), suggesting that she was aware of the content of s 14E(2)(a) and was applying it at this point in her judgment.

73. I find that the AC’s decision contained no error of law as identified in the summons in prayers 4 and 5 in how views from the Appellant’s property were considered in light of s 14E(2)(a)(ii) of the Trees Act. The Appellant is unsuccessful on this ground.

Costs

74. The parties did not address me orally on costs. Both sought orders that costs should be awarded in their favour in their written submissions.

75. Rule 3.7 of the Land and Environment Court Rules 2007 (NSW) concerning the awarding of costs in Class 1 appeals does not apply to appeals under s 56A of the LEC Act. The usual costs order under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) applies so that costs are awarded to the successful party in the absence of disentitling conduct. The Respondent as the successful party should have their costs of this appeal paid by the Appellant.

Orders

76. The Court orders that:

1. The Appellant’s summons filed 22 May 2023 is dismissed.

2. The Appellant is to pay the Respondent’s costs as agreed or assessed.

**********

Decision last updated: 27 February 2024