Bonner v D'Arcy

[2021] NSWLEC 1329

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bonner v D’Arcy [2021] NSWLEC 1329

Hearing dates:

12 April 2021

Date of orders:

8 June 2021

Decision date:

08 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A, F and 4.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees are planted to form a hedge – obstruction of views – whether the obstruction is severe – application dismissed

Legislation Cited:

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

Cases Cited:

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

Texts Cited:

AS 4373–2007 ‘Pruning of amenity trees’

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

Category:

Principal judgment

Parties:

Chelsea Bonner (Applicant)
John William D’Arcy (First Respondent)
Leslie Patricia D’Arcy (Second Respondent)

Representation:

Counsel
D Loether (Solicitor) (Applicant)
I Smith (Solicitor) (Respondents)

Solicitors
Bartier Perry Lawyers (Applicant)
Harris & Company Solicitors (Respondents)

File Number(s):

2020/323056

Publication restriction:

No

Judgment

Background to the application

1. At the rear of the Fairlight property belonging to John and Leslie D’Arcy (‘the respondents’) are three mature trees: two weeping figs (Ficus benjamina) and a box elder (Acer negundo). They provide shade and amenity behind the D’Arcys’ dwelling. Chelsea Bonner (‘the applicant’) lives upslope from the D’Arcys’ property, their common boundary being the rear boundary of each property. The back of Ms Bonner’s dwelling faces south toward North Harbour and Reef Bay. She claims the trees severely obstruct the view from her dwelling. Ms Bonner has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for removal of the weeping figs, annual pruning of the box elder, restrictions on any replacement plantings, and her costs in these proceedings.

Framework for this decision

2. For the Court to 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 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 applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

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

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The hearing

3. The hearing took place onsite, allowing me to observe the trees, Ms Bonner’s views, the potential for overlooking between the properties, and other features of these properties. As we observed these features, evidence was provided by the experts present: planner, Alison Davidson and arborist, Louise Bennett for the applicant; and planner, Joe Vescio and arborist, Kyle Hill for the respondents.

Do the trees form a hedge?

4. The requirement that the trees are planted so as to form a hedge is a key test here. The parties disagree on this issue. 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.”

5. 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 obvious from the trees’ appearance whether they were planted to form a hedge or not. In some cases, such as this, it might be less clear.

6. Mr Loether, solicitor for the applicant, argued that the trees are planted in a roughly linear fashion and are of a similar age. Ms Bennett thought all three trees were probably planted at the one time. On the other hand, Mr Smith, solicitor for the respondents, argued that the trees are not planted to form a hedge. The trees were planted perhaps 40–50 years ago, when the respondents’ property contained a block of flats. Mr Smith said the trees were outside the back of the building, near the laundry, and would have been planted for shade and amenity. If the owners then had wanted to grow a hedge, he argued, they would have planted them along the rear boundary and at closer spacings.

7. I find the trees are not planted to form a hedge for three reasons. Firstly, the two figs are significantly different in size: tree 1 is approximately 8 m tall with a stem diameter of 30 cm, while tree 2 is approximately 12 metres tall with a stem diameter of 50 cm. It is possible for trees to grow at different rates such as this, but I see no reason why this would have occurred here. It is more likely that these two trees were planted at different times. If that happened, it would be possible for the second tree to be planted so as to form a hedge with the existing tree, but it is difficult to see how the first tree was planted with an intention to form a hedge.

8. Secondly, I find it unlikely that someone attempting to establish a hedge would have planted two evergreen fig trees and one deciduous box elder. It is more likely, as suggested by Mr Smith, that these were planted as specimen shade trees.

9. Thirdly, there is no sign that these trees have ever been maintained as a hedge. 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 generally maintained to provide a screen to a certain height.

10. 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 bold.

“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.”

11. 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 Court and for which orders have been made; but it does not describe these three trees, which are more like three feature trees growing in a straight row.

12. 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. In case I am wrong on this issue, I also consider the view obstruction below.

The applicant has not lost a view

13. If I am satisfied that the trees severely obstruct a view from the applicant’s property, I must consider the matters at s 14F before making any orders.

14. I observed the view, and trees’ obstruction of views, from the applicant’s dwelling, from where three viewing points were included in the application. Despite their inclusion, all parties agreed during the onsite hearing that there was no severe obstruction from two of those viewing points. The applicant insisted, however, that the trees caused a severe view obstruction from her dining room. There was some discussion over whether some branches belonged to tree 1 or tree 2. I observed that some branches of tree 1 obstructed part of the available water view, but not significantly so. Tree 2, on the other hand, obstructed significant parts of the view, including iconic features such as South Head. Tree 3 was deciduous at the time of the hearing, but I observed that even had it been in leaf it would not have severely obstructed any view. If I had found above that the trees formed a hedge, their impact on views would be considered as one, and due to tree 2’s contribution the hedge might be found to cause a severe view obstruction. Mr Vescio pointed out the overall view availability from the applicant’s dwelling, and suggested the obstruction was perhaps ‘moderate’; whereas Ms Davidson described it as ‘severe’.

15. If the trees were planted to form a hedge (and I have found they are not) and if they severely obstruct a view, the Court is required to consider the matters at s 14F of the Trees Act, including at s 14F(s): “such other matters as the Court considers relevant in the circumstances of the case.”

16. The Court has consistently found that the applicant themselves must have lost the view. This has been based on relevant background material, including the 2009 Review referred to above at [10]. The Trees Act does not assume a right to a view, but provides an opportunity to remedy a view lost to an applicant.

17. In the material filed with the Court, Ms Bonner did not include a photo showing the view from the dining room as it was in 2016, being around the time she purchased her property. This seems remiss, given that this is the key position from where the view loss is claimed. Ms Davidson included in her report (Exhibit D) a photo (Fig 4 on p 7) taken from the first-floor balcony (V3) from which point the applicant no longer presses a view obstruction. Ms Davidson also included a photo taken from a similar position in 2021 (Fig 18 on p 17). Due to the later photo’s smaller field of view, tree 2 takes up more of the frame, but comparing these two photos shows a slight increase in the tree’s size over five years, resulting in a correspondingly slight increase in the extent to which it obstructs the view, but I do not find the change significant. Keeping this amount of growth in mind, looking at recent photos from the level of the dining room, and indeed relying on observations during the onsite view, it seems to me that tree 2 obstructed the view of South Head from here in 2016, as it does now.

18. This is hardly surprising, considering these are mature trees whose growth rate has slowed, and annual height increase is unlikely to be significant. Mr Loether pointed out that this is not a jurisdictional test. I agree, and the application has already failed on the first jurisdictional test requiring that the trees are planted so as to form a hedge. Nevertheless, if jurisdictional tests were satisfied, allowing me to make orders, I would not make any orders on this basis: Ms Bonner has not suffered a severe loss of views that were available to her when she purchased her property. In 2016, she bought this property with the view already obstructed by these trees, or at least by tree 2.

19. Further supporting this finding, Mr Smith submitted that the previous owners of the applicant’s property asked the respondents to prune the trees in 2010, because the trees had grown into their views at that time.

Trees were pruned without permission

20. In December 2020, the applicant organised pruning of the trees from within her property, without the respondents’ permission. It appears that pruning was done from the ground with a pole saw. The standard of pruning was poor, and not within the guidelines of AS 4373–2007 Pruning of amenity trees. There may be some adverse impacts to the tree as a result of this pruning. Long branch stubs were left, and epicormic growth will sprout from these, with the result that in several years Ms Bonner might have some weakly attached branches above her garden. The respondents submitted that the shade-tolerant plants growing in their garden beneath these trees might now be damaged by the extra sunlight and heat resulting from the reduction of overhead tree canopy.

21. Northern Beaches Council allows reasonable pruning (up to 10% of a tree’s canopy in any 12-month period) if it is done in accordance with AS 4373–2007. Ms Bonner did not carry out pruning in accordance with that standard and has damaged the respondents’ trees. Corrective pruning is required to fix the mistakes. Under Pt 2A of the Trees Act, the Court’s power to make orders is limited at s 14D to orders that remedy, restrain or prevent the severe obstruction of either: sunlight to a window of the applicant’s dwelling; or, a view from the applicant’s dwelling. Corrective pruning does not fall into either category, or I would order such pruning at Ms Bonner’s expense.

Orders

22. As a result of the foregoing, the Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibits A, F and 4.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 June 2021