Coyle v Trevitt; Smith v Trevitt

[2020] NSWLEC 1538

Land and Environment Court

New South Wales

Medium Neutral Citation:

Coyle v Trevitt; Smith v Trevitt [2020] NSWLEC 1538

Hearing dates:

3 November 2020

Date of orders:

3 November 2020

Decision date:

03 November 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Proceedings 2019/403102

The orders of the Court are:

(1) The application is refused.

Proceedings 2020/39033

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications concerning neighbouring trees – whether the properties are adjoining – whether the trees are planted to form a hedge – whether the trees are severely obstructing a view

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:

Cavalier v Young [2011] NSWLEC 1080

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

Category:

Principal judgment

Parties:

Proceedings 2019/403102
Ian Coyle (First Applicant)
Janet Coyle (Second Applicant)
Jennifer Trevitt (Respondent)

Proceedings 2020/39033
Graydon Smith (First Applicant)
Beverly Smith (Second Applicant)
Jennifer Trevitt (Respondent)

Representation:

Proceedings 2019/403102
J Coyle (Litigant in person) (Applicants)
J Trevitt (Litigant in person) (Respondent)

Proceedings 2020/39033
G Smith (Litigant in person) (First Applicant)
B Smith (Litigant in person) (Second Applicant)
J Trevitt (Litigant in person) (Respondent)

File Number(s):

2019/403102; 2020/39033

Publication restriction:

No

Judgment

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

Background to the application

1. Two separate applications were made pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders to prune trees in the rear garden of a Vincentia property belonging to Jennifer Trevitt (the ‘respondent’). Graydon Smith and Beverly Smith (the ‘applicants’ in proceedings 2020/39033) have lived upslope of Ms Trevitt since 2010, at which time they had views above Ms Trevitt’s trees to Bowen Island. Janet Coyle and Ian Coyle (the ‘applicants’ in proceedings 2019/403102) have lived at their property since 2001, when Ms Trevitt’s trees were below her roofline and they had broad views beyond her property.

2. Each application must be considered separately on its own merits. They both seek similar orders: for all trees in Ms Trevitt’s back garden to be pruned to around 2.5 metres in height, or roughly the height of her roofline, and then maintained at that height. Each application includes 13 trees of various species, some along Ms Trevitt’s rear boundary and others growing throughout her garden.

The hearing

3. With COVID-19 restrictions preventing onsite hearings at the time, the parties agreed to the matter proceeding via audio-visual means. The parties had filed material including photographs, so that I was of the opinion that neither the hearing nor this decision would suffer from the lack of an onsite view.

Properties are adjoining

4. Applications can only be made for orders under the Trees Act (at s 14B) for trees on land adjoining the applicant’s land. The Smiths and Ms Trevitt share a common boundary, so the trees are on land that adjoins the Smiths’ property. The Coyles’ property and Ms Trevitt’s property touch only at a corner of each, similar to the situation in Cavalier v Young [2011] NSWLEC 1080, where Commissioner Fakes found at [7] that the properties were adjoining. I am satisfied that the trees are on land adjoining the Coyles’ property.

The trees

5. Ms Trevitt provided further information regarding the trees. A row of eight hakea trees planted along her rear boundary, she says, form a hedge. Two of these have died but remain in place. The other trees, she says, are not part of any hedge. They grow at various spacings around the garden, on separate terraces, not in any linear or hedge-like fashion. Some, for example a birch, were planted by the previous owner, while others, such as a sweet pittosporum, are more likely self-sown.

6. Ms Trevitt has pruned the eight hedge trees (the hakeas) twice, once several years ago and then again earlier in 2020. The 2020 pruning reduced their height to approximately 2.4 metres.

Only the eight hakeas are planted to form a hedge

7. The applicants in both matters say all trees should be considered part of a hedge, as they all obstruct their views. All 13 trees contribute to some form of visual screening of their views. The pittosporum might be several metres from the boundary but its branches reach to the boundary, near the hakeas, so the Smiths argued that it is part of the hedge.

8. Part 2A of the Trees Act applies only to certain trees, as established at s 14A:

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).

(2) …

9. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ provided analysis of this section’s limitation on the Court’s jurisdiction at [26]–[28].

“26 A tree that is self-sown can never satisfy the purpose stated in the adverb clause of purpose 'so as to form a hedge'. The action of being sown by an agency other than humans, such as by the wind or birds, is purposeless. Only the action of putting or setting a tree in the ground or otherwise by human agency is capable of satisfying the purpose in the adverb clause of purpose 'so as to form a hedge'.

27 I return to my earlier observation that the phrase 'trees that are planted' is in the simple present tense. The simple present tense can be used to indicate that a fact or state of affairs was true before, is true now and will be true in the future; that an action happens all the time or habitually, in the past, present or future; or to make generalisations about people or things.

28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement 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.”

10. Trees that are likely to be self-sown, such as the pittosporum, were not ‘planted so as to form a hedge’. For trees that were planted, the intent must have been, at the time of planting, to form a hedge. There is no evidence of this for trees other than the hakeas, and nothing in the pattern of planting suggests such an intent. It follows that the Court cannot make orders for those trees.

Trees in the hedge do not severely obstruct a view

11. Only the hakeas were planted so as to form a hedge. They have been pruned by the respondent and do not severely obstruct a view from the applicants’ property in either matter. The respondent intends to maintain the hakeas in future, although not at their current reduced height. Even at a greater height, she argued, they would not obstruct a view, due to the presence of other trees.

12. I find that the hakeas do not severely obstruct a view from either the Coyles’ dwelling or the Smiths’ dwelling. There are no grounds for making orders to prune the hakeas.

There is no basis for making orders

13. The impacts to views for the applicants in both matters are a result of trees growing in Ms Trevitt’s garden, but those trees are not planted to form a hedge. The jurisdiction under Pt 2A of the Trees Act does not extend to removing such a view obstruction. Trees that are planted to form a hedge in Ms Trevitt’s garden do not severely obstruct the applicants’ views.

Orders

Proceedings 2019/403102 (Coyle v Trevitt)

14. As a result of the foregoing, the orders of the Court are:

1. The application is refused.

Proceedings 2020/39033 (Smith v Trevitt)

15. As a result of the foregoing, the orders of the Court are:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 04 November 2020