Condon v Scott

[2021] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:

Condon v Scott [2021] NSWLEC 1160

Hearing dates:

30 November 2020

Date of orders:

6 April 2021

Decision date:

06 April 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application regarding the palms is refused.

(2) The application regarding the cypress hedge is granted.

(3) The Respondents are to engage, at their expense, a suitably experienced tree maintenance contractor with all necessary insurances to undertake periodic pruning of Tree 12 (comprising of 19 individual Cupressus × leylandii ‘Leighton Green’ otherwise known as Leighton Greens as depicted on the Tree Location Plan Attachment 1 to the Tree Dispute Application filed 1 October 2020 (The Plan)) so that Tree 12 does not exceed a height of 6.3 metres at any given time when measured from the ground level within 9 Bolingbroke Parade Fairlight.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedges – palms – cypress – whether the trees form a hedge – obstruction of views – whether the obstruction is severe – whether the applicant’s view has become severely obstructed – no orders made for palms – consent orders for cypress

Legislation Cited:

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

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Steber v Job [2019] NSWLEC 1308

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009

Category:

Principal judgment

Parties:

Phillipa Mary Condon (Applicant)
Michael Leslie Scott (First Respondent)
Pamela Diana Scott (Second Respondent)

Representation:

Counsel:
D Loether (Solicitor) (Applicant)
J Cole (Solicitor) (Respondents)

Solicitors:
Bartier Perry Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondents)

File Number(s):

2020/228888

Publication restriction:

No

Judgment

Background to the application

1. Ms Condon (‘the applicant’) purchased her Fairlight property in 2018. From the rear of her dwelling are views to the south across North Harbour, taking in Balgowlah Heights, Dobroyd Head and beyond to South Head. At the time she purchased, the neighbours to her south, Michael and Pamela Scott (‘the respondents’) had established trees growing in their garden.

2. After initially applying to the Court in August 2020, Ms Condon amended the application in October 2020. Her amended application sought orders, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), for several palm trees to be removed and for a hedge of cypress trees to be pruned and maintained below a certain height. At the hearing, the parties put forward proposed consent orders for regular pruning of the palms and the cypress.

The hearing

3. The hearing took place onsite, allowing me to observe the hedge, views, issues of privacy and other matters.

Framework for this decision

4. 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)).

5. I am satisfied that the applicant has made reasonable effort to reach agreement with the trees’ owners. They have been involved in lengthy negotiations, such that by the time of the hearing they presented to the Court proposed consent orders.

6. Despite the proposed consent orders, the jurisdictional tests of the Trees Act must still be satisfied before those orders can be made, as explained by Sheahan J at [6]-[10] in Breen v Caronna [2008] NSWLEC 293. That is, the orders must be ones that the Court can make, and would make, after considering the application within the framework of the Trees Act.

7. The application concerns two groups of trees: palms and cypress.

Layout of the properties

8. Ms Condon’s property is upslope from the Scotts’ property, with their common boundary being the rear boundary of each property. From the rear of Ms Condon’s dwelling, one looks across the back of the Scotts’ property to views of North Harbour. Trees in this application are in the Scotts’ rear garden.

The palms do not form a hedge

9. Ms Condon’s application originally sought removal of 11 palms: five Cocos palms (Syagrus romanzoffiana) and six Bangalow palms (Archontophoenix cunninghamiana). Proposed consent orders included pruning and de-fruiting the palms at regular intervals.

10. At s 14A(1) of the Trees Act, Pt 2A applies only to: groups of 2 or more trees that:

1. are planted (whether in the ground or otherwise) so as to form a hedge, and

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

11. The palms are more than 2.5 metres tall and appear to have been planted, but they do not form a hedge.

12. The Trees Act does not provide a definition for hedge. The inclusion of Pt 2A (obstruction of sunlight and views) in the Trees Act followed the Attorney General’s 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Review’). The Attorney General considered submissions from relevant stakeholders before making recommendations that led to the 2010 Amendment to the Trees Act. Recommendation 9 of the Review was (with my emphasis in bold):

“Recommendation 9

(a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.

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.

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

e) That orders not be enforceable by the applicant's successors in title, and that they only be enforceable against the respondent's first successor in title.

f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.”

13. Subsequently, Pt 2A of the Trees Act was added, with its jurisdictional limits reflecting the Review’s recommendations regarding high, dense hedges (s 14A(1)), severity of obstruction (s 14E(2)(a)) and the balancing of neighbours’ respective rights to enjoy their land (s 14E(2)(b)). While ‘hedge’ is not defined in the Trees Act, the Review’s recommendation included limiting the jurisdiction to “…hedges which are both high and give the effect of a solid barrier”.

14. In Wisdom v Payn [2011] NSWLEC 1012, Moore SC and Hewett AC found at [44]-[45]:

“44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings.

45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

15. I do not think the 11 palms in the Scotts’ garden would be perceived to be a hedge. They certainly do not provide any sort of solid barrier or screen. For this reason, I find that Pt 2A does not apply to the palms.

16. Furthermore, if I had found that Pt 2A applied to the palms, I also observed from the rear of Ms Condon’s dwelling that they do not severely obstruct her views. The palms are some distance from her dwelling, with their fronds obscuring only small parts of the overall view. Within the context of the broad views available to Ms Condon, the obstruction caused by the palms could not be considered severe. There would be no basis for the Court to make orders to interfere with the palms, so I will not make the consent orders first presented by the parties.

17. During the onsite hearing, I conveyed this finding regarding the palms to Mr Loether and Mr Cole. They undertook to amend the proposed consent orders accordingly, and subsequently sent to the Court a copy of the revised consent orders.

The cypress hedge

18. Nineteen Leighton Green Cypress trees (Cupressus × leylandii ‘Leighton Green’) (collectively labelled ‘tree 12’ in the application) are planted around the perimeter of the Scotts’ rear garden. The trees are planted closely at regular spacings; their foliage creates a continuous tall dense screen around the garden. I am satisfied that the cypress trees are planted to form a hedge.

19. Photographs filed with the application show that trees in the cypress hedge obstructed the view until they were recently pruned. The view obstructed by the trees included the water of North Harbour and broad sections of the suburban landscape, some of the most valued parts of Ms Condon’s view from the rear of her dwelling. I am satisfied that the view obstruction was severe, and had been so for some time. At the time of the hearing, the trees had been pruned and the view obstruction was not severe. However, without any agreement between the parties, the severe obstruction is likely to recur. Such an ongoing obstruction, even if temporarily abated, satisfies the jurisdictional requirement at s 14E(2)(a), as the Court found in Steber v Job [2019] NSWLEC 1308 at [34]-[45].

20. Mr Loether pointed out the trees’ impacts to Ms Condon’s views, and the benefits to Ms Condon of maintaining the trees at a height that would retain most of her view. Ms Condon also provided reports from Louise Bennett (arboricultural expert) and Alison Davidson (planning expert). Mr Cole explained the benefits of the trees, most importantly for the Scotts’ privacy and amenity, and the trees’ contribution to their landscape. The Scotts provided reports from Guy Paroissien (arboricultural expert) and Andrew Martin (planning expert).

21. Having considered the evidence and submissions, and the relevant matters at s 14F of the Trees Act, I find it would be appropriate to make the revised consent orders. The trees form a tall dense screen obstructing a view that was previously available to Ms Condon. The obstructed view is a valued part of the main outlook from the rear of Ms Condon’s dwelling. Now that the trees have been pruned, future pruning to maintain Ms Condon’s view will not adversely affect the trees. Pruning these trees would not require consent from Northern Beaches Council, which lists all cypress species as suitable for removal without consent. The trees are not an important part of the local ecosystem, and contribute little value beyond the respondents’ property.

22. The proposed consent orders for pruning the cypress hedge strike a balance between maintaining both Ms Condon’s views as well as the Scotts’ privacy and amenity. Other consent orders originally proposed by the parties are not orders the Court would make in this matter. The parties asked the Court to note the following agreement, which does not form a part of the Court’s orders:

“1. The parties agree that, should the Applicant be of the view that Tree 12 [the cypress hedge] exceeds 6.3 metres and requires pruning, they are to write to the Applicant and give them 28 days to rectify the exceedance and should act reasonably prior to taking any contempt action.

2. The Respondents’ agrees to engage, at their expense, a suitably experienced tree maintenance contractor with all necessary insurances to undertake periodic pruning of Trees 1 to 8 as depicted on the Plan for the purpose of removing any dead, dying or browned branches from Trees 1 to 8 as well as the removal of the fruit pods from Trees 1 to 8. The growth point (the bulbous part of the palms) and the young vertical branches are to remain untouched so not to affect the viability of Trees 1 to 8.

The first pruning will be undertaken within 28 days from the date of these orders and a minimum of once per year in the month of November thereafter.

3. Each party agrees to pay its own costs of the proceedings.”

Orders

23. For the reasons given above, the Court orders:

1. The application regarding the palms is refused.

2. The application regarding the cypress hedge is granted.

3. The Respondents are to engage, at their expense, a suitably experienced tree maintenance contractor with all necessary insurances to undertake periodic pruning of Tree 12 (comprising of 19 individual Cupressus × leylandii ‘Leighton Green’ otherwise known as Leighton Greens as depicted on the Tree Location Plan Attachment 1 to the Tree Dispute Application filed 1 October 2020 (The Plan)) so that Tree 12 does not exceed a height of 6.3 metres at any given time when measured from the ground level within 9 Bolingbroke Parade, Fairlight.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 06 April 2021