Cooper v Clayton

[2020] NSWLEC 1114

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cooper v Clayton [2020] NSWLEC 1114
Hearing dates:	16 January 2020
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1)   Within 60 days of the date of these orders: (a)   the respondent shall determine the height at which Tree 8, at the eastern end of the hedge, is to be pruned by projecting a horizontal line from the top rail of the balcony of either of the two eastern most apartments to the tree (1.05m above the deck floor level). (b)   Tree 8 at the eastern end of the hedge shall be pruned to the height based on this horizontal line projected from the top of the balcony railing of either of the two eastern most apartments to the tree (1.05m above the deck floor level). (c)   after this pruning, the height of Tree 8 above ground level shall be measured at its base, and Lilypily trees 6, 5, 4, 3 and 1 shall be pruned at this height relative to the ground level of each tree. This will result in trees of equal height, regardless of the slope of the land. Trees 2 and 7 shall remain unpruned. (2)   These six trees (T1, 3, 4, 5, 6 and 8) shall be maintained by re pruning the trees as per Order (1) every two years, based on the date of pruning that Order (1) is initially completed. (3)   Pruning shall be completed by an AQF level 3 Arborist with all appropriate insurance, shall comply with AS4373:2007 (Pruning of amenity trees), and shall meet all requirements of Safework Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 (4)   The respondent shall notify the applicant in writing at least 48 hours prior to the works proceeding, and the applicant shall allow the contractor access into his property to undertake the works, should it be required. (5)   For each pruning operation, each party shall get up to two quotes. If parties cannot agree on a contractor, the cheapest quote shall be selected. Within 30 days of receipt of a paid invoice, after completion of each of the pruning works, the applicant shall reimburse the respondent for 50% of the cost of the works.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	AS4373:2007 (Pruning of amenity trees) Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	John Cooper (Applicant) Wayne Clayton (First Respondent) Dian Clayton (Second Respondent)
Representation:	J Cooper (Litigant in person) (Applicant) W Clayton (Litigant in person) (Respondent)
File Number(s):	2019/329498
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: Mr Cooper, of Bilambil Heights, submitted an application, pursuant to s 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), on the basis that a hedge in his adjacent neighbours’ property severely restricts views.

2. Mr Cooper has owned a commercial property since 2006, at the rear of which is a row of four apartments, which face towards the north. This property shares a common rear boundary with that owned and occupied by Mr Clayton, the respondent.

3. In about 2005, a row of six Lilypily (Syzygium sp.) trees (the trees) were planted at the rear of Mr Clayton’s back yard, roughly parallel to the boundary. These trees, which were mis-identified as Cheese trees in the case file, have since grown considerably, and currently provide many environmental services such as privacy from the neighbouring apartments positioned higher up the sloping topography, and biodiversity benefits for birds and other fauna.

4. Prior to 2013, Mr Cooper contracted for the trees to be pruned, the works carried out were excessive, and resulted in the trees being lopped back to short branches emanating from low trunks. Mr Cooper claims that he had not directed nor expected the pruning to be so excessive and extreme, but this, nonetheless, soured relations between the parties with respect to subsequent negotiations regarding the trees.

5. In 2015, an arrangement was made between the parties for the top of the hedge to be pruned by a suitable professional contractor so as to regain lost views, and this work was apparently completed satisfactorily, at Mr Cooper’s expense, in 2016.

6. By 2019, when the trees had again grown into the view, Mr Cooper sought to organise a similar arrangement with Mr Clayton, but was granted permission to prune overhanging foliage, but not the height, and the application to the Court was subsequently lodged.

7. Mr Cooper proposes orders to:

1. Have the trees (Cheese trees (sic)) trimmed to enable views to be returned to his property, and for regular maintenance to retain views.

8. Mr Clayton’s alternative proposal is:

1. Retention of the six (6) ‘Cheese” (sic) trees under dispute.

2. Mr Cooper, as of right, to remove branches overhanging dividing fence over his property.

3. Mr Cooper to dispose of pruned branches at his discretion, by returning the said branches to respondent’s property, or to be removed by his contractor.

4. Any further pruning of these trees is to be at the discretion of Wayne and Dian Clayton, the owners of the respondent’s property.

The on-site hearing

9. The hearing commenced with an inspection of Mr Clayton’s rear yard. The trees are located within a garden bed at the rear, and while the spacing between the trees was irregular, their linear pattern is consistent with a normal understanding of a hedge. Two other trees, a Queensland Firewheel tree and a Desert Ash have been planted in this area more recently, and by nature of their form and or open canopy, are not considered part of the hedge.

10. The Court moved to the applicant’s rear yard and assessed the view loss from apartment verandas, then assembled for submissions. Photographs submitted by the applicant, which illustrate the outlook when the hedge was much lower, display regional views which include extensive water views spanning north-west to north-east, and the ocean to the north-east, and east.

11. Currently the hedge blocked access to these views from at least three of the four apartments’ living rooms and adjacent verandas.

Jurisdictional requirements

12. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

13. The first test is s 14A(1), that is, are the trees planted along the southern boundary of the respondents' rear yard, a hedge for the purpose of the Act?

14. Section 14A(1) states:

(1) This Part applies only to groups of two 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).

15. Given that the trees were planted in about 2005, and now reach six or seven metres in height, s 14A(1) is satisfied.

16. Section 14E(1)(a) requires the applicant to make a reasonable attempt to reach agreement with the owner of the land on which the trees are situated. Though negotiations have been difficult, and there have been procedural issues related to the service of documents, a ‘reasonable attempt’ does not involve specific requirements as in some jurisdictions, and the Court accepts that negotiations can continue up to and including the on-site hearing. The hearing was conducted cordially and co-operatively between the parties, such that I am satisfied that this requirement has been met.

17. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.

18. Section 14E(2)(a)(ii) states:

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

(a) the trees concerned:

…

(ii) are severely obstructing a view from a dwelling situated on the applicant's land…

19. The applicants’ residence is upslope from that of the respondents. The rear living areas of Mr Cooper’s apartments are designed to capitalise on views towards the water to the north and north-east, such that all viewing points, either in rear living areas, or adjacent verandas, are oriented in these directions.

20. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).

21. The first three steps of the four step process are considered relevant to Part 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

22. In applying those principles to this hedge, the view in contention spans more than 90 degrees of waterways, including the ocean, and includes the interface between land and water. Being from a high vantage, it covers a large area, such that it is a regional, rather than local view. Views are currently blocked from both a standing and sitting position.

23. Considering the third step of Tenacity, the extent of the impact for the whole of the property is certainly severe. With the exception of thin slivers of outlook currently visible between the trees, all views from the rear living areas, and the adjacent decks of the apartments, considered as living areas under the Act, are blocked by the hedge.

24. Though the Court sets a high bar when considering the word 'severe', I am satisfied the six trees which comprise the hedge are severely obstructing a view from a dwelling situated on the applicant's land (s 14E(2)(a)(ii)), and the Act is therefore engaged.

25. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

(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.

26. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

• (a) The hedge is located in the respondent’s property loosely parallel to, and close to their southern boundary.

• (b) The trees were planted about 15 years ago.

• (c) The trees have grown to their current height of six to seven metres, since that time.

• (d) It appears that the trees are protected by Council’s Tree Management controls under its Development Control Plan, as they are more than five metres high.

• (g, h) The trees make a moderate contribution to the local ecosystem and biodiversity, as a source of food and or habitat for local fauna, and contribute to the natural landscape and scenic value of the land on which they are situated.

• (i) The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity.

• (j) The trees provide benefit for soil stability, and absorption of water to reduce run-off down the Clayton’s sloping site.

• (k) The trees can normally be pruned lightly without unduly affecting their health or function, though this should not be repeated too regularly as they need time to recover sufficiently to re-accumulate storage of carbohydrates. Excessively heavy pruning prior to 2015 appears to have been detrimental to the trees’ form and health status, but as a group, they are currently in fair to good condition.

• (l) Being higher up the hill, and on the upper level, the applicants’ verandas and rear living areas overlook the respondent’s rear yard, and the hedge contributes significantly to providing privacy for the respondent. It also adds to garden design and contributes to the amenity value of the garden as a sanctuary for Mr and Mrs Clayton. This privacy is deemed an important consideration by the respondent.

• (n) Mr Cooper sought permission to rectify the obstruction, as had occurred in 2015-16, but the permission granted by the respondent in 2019 was not appropriate to achieve this outcome.

• (p) The hedge is evergreen.

• (r) The obstructed view is from living rooms and adjacent verandas, and the view is almost entirely restricted by the hedge.

Conclusion

27. Based on this overall assessment, minor pruning of the hedge will be ordered so that the regional and water views are regained for the applicant, while retaining most of the hedge’s benefits of privacy and landscape amenity for the respondent. This will result in little loss of amenity for the respondent, and significant benefit for the applicants.

28. When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention in this case. However, Mr Cooper, in acknowledgment of the benefits he will regain, and in the interest of improved relations with his neighbour, has agreed to contribute half the cost of the works.

Orders

29. The orders of the Court are:

1. Within 60 days of the date of these orders:

1. the respondent shall determine the height at which Tree 8, at the eastern end of the hedge, is to be pruned by projecting a horizontal line from the top rail of the balcony of either of the two eastern most apartments to the tree (1.05m above the deck floor level).

2. Tree 8 at the eastern end of the hedge shall be pruned to the height based on this horizontal line projected from the top of the balcony railing of either of the two eastern most apartments to the tree (1.05m above the deck floor level).

3. after this pruning, the height of Tree 8 above ground level shall be measured at its base, and Lilypily trees 6, 5, 4, 3 and 1 shall be pruned at this height relative to the ground level of each tree. This will result in trees of equal height, regardless of the slope of the land. Trees 2 and 7 shall remain unpruned.

2. These six trees (T1, 3, 4, 5, 6 and 8) shall be maintained by re pruning the trees as per Order (1) every two years, based on the date of pruning that Order (1) is initially completed.

3. Pruning shall be completed by an AQF level 3 Arborist with all appropriate insurance, shall comply with AS4373:2007 (Pruning of amenity trees), and shall meet all requirements of Safework Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

4. The respondent shall notify the applicant in writing at least 48 hours prior to the works proceeding, and the applicant shall allow the contractor access into his property to undertake the works, should it be required.

5. For each pruning operation, each party shall get up to two quotes. If parties cannot agree on a contractor, the cheapest quote shall be selected. Within 30 days of receipt of a paid invoice, after completion of each of the pruning works, the applicant shall reimburse the respondent for 50% of the cost of the works.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 23 March 2020