Davidson v Bower

[2024] NSWLEC 1463

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davidson v Bower [2024] NSWLEC 1463

Hearing dates:

12 March 2024

Date of orders:

1 August 2024

Decision date:

01 August 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [41]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – cypress hedge – obstruction of views – whether the trees are planted so as to form a hedge – whether the obstruction is severe – privacy – balancing of interests – orders for pruning

Legislation Cited:

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

Cases Cited:

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

Swadel v Chissell [2022] NSWLEC 1513

Tenacity Consulting v Waringah (2004) 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:

Trent Davidson (Applicant)
Phillip Bower (First Respondent)
Grace Bower (Second Respondent)

Representation:

Counsel:
T Davidson (Self-represented) (Applicant)
M Adamo (Solicitor) (Respondents)

Solicitors:
Staunton & Thompson Lawyers (Respondents)

File Number(s):

2023/449410

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Trent Davidson (the applicant) purchased his Clontarf property in 2018. Soon afterwards, Grace and Phillip Bower (together, the Bowers, or the respondents) purchased the adjoining property to Mr Davidson’s south. Mr Davidson’s land is a battle-axe property behind the Bowers’ property. The land here slopes up to the north, away from the water of Middle Harbour, so that Mr Davidson’s dwelling is higher than the Bowers’ property, with an extensive outlook to the south that potentially includes water views.

2. In a raised garden bed along the Bowers’ northern boundary, being the common boundary shared with Mr Davidson, is a row of mature cypress trees. For some time, Mr Davidson had an agreement with the Bowers regarding the height of these trees, and Mr Davidson, or his gardener, maintained the trees at the agreed height. However, negotiations between the parties broke down in early 2023, and the trees have not been pruned since. Mr Davidson found that the trees grew to obstruct his views.

The hearing and evidence

3. The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Mr Davidson was self-represented, while Mr Adamo represented the Bowers. Apart from what was observed during the site view, and some oral evidence I will come to below, the only evidence before the Court is contained in material filed by Mr Davidson, including a report from Jacki Brown, a consulting arborist at New Leaf Arboriculture, copies of correspondence between the parties, correspondence from the Community Justice Centres (CJC), and text messages between Mr Davidson and his gardener.

4. Mr Davidson wanted the Court to consider a view impact assessment report by Daniel Knight, of Urbaine Design Group. The report had not been filed with the Court nor served on the respondent prior to the final hearing. Mr Knight attended the hearing, with Mr Davidson wanting him to present oral evidence in support of his report. The Court’s earlier orders, made at the Directions Hearing on 6 February 2024, required Mr Davidson to file and serve any expert evidence by 13 February. The Bowers had no opportunity to respond to the report, and Mr Davidson provided no satisfactory explanation for failing to file and serve the report, so the evidence of Mr Knight was refused.

5. Likewise, the Bowers wished the Court to read an affidavit sworn by Mr Bower the day before the hearing and delivered to Mr Davidson the night before the hearing. The Court’s earlier orders directed the Bowers to serve and file any evidence by 20 February 2024. With the Bowers unable to provide any satisfactory explanation for not following those orders, the Court has not read the affidavit.

Mr Davidson applied to the Court

6. Pursuant to s 14B in Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), Mr Davidson has applied to the Court for orders to remedy, restrain or prevent a severe obstruction of a view from his dwelling. He claims that the view obstruction is a consequence of trees that are on adjoining land. He seeks the following orders:

1. Maintain existing overheight [sic] hedge (on land at northern boundary of 6A Ogilvy Road Clontarf NSW 2093) at a proposed height of 70 - 100cm (and no higher than 120cm) above existing pool area colourbond fence at 6 Ogilvy Road;

2. Request that above maintenance be arranged and paid for by owners of 6A Ogilvy Road Clontarf NSW 2093 and that this hedge maintenance is performed at regular intervals (eg. every 3 - 6 months as recommended in attached Arborist report).

7. The orders Mr Davidson seeks are orders that the Court can make at s 14D of the Trees Act. The Court is not required to make these orders, but may make “such orders as it thinks fit to remedy, restrain or prevent the severe obstruction” of a view if the trees are causing the obstruction (s 14D(1)(b)).

The trees are planted so as to form a hedge

8. The Court’s jurisdiction under Pt 2A of the Trees Act is limited at s 14A(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).

9. The Bowers dispute that the trees are ‘planted so as to form a hedge’, saying there is no evidence to show that they were planted with this intent. They do not dispute that the trees are at least 2.5 metres tall.

10. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ established (at [19]–[28]) that the wording ‘trees that are planted so as to form a hedge’ at s 14A(1)(a) requires that the trees were planted with the intent of forming a hedge at the time of planting, and that they form a hedge in the present. Sometimes, the intent of the tree planter in the past might be known, but often it must be surmised by relying on factors such as the formation of the planting and the species used. The Court can make a determination based on its own observations: see Swadel v Chissell [2022] NSWLEC 1513 at [7].

11. The trees that are the subject of this application are Leyland cypress (Cupressus × leylandii), a species commonly bought and planted for hedging. The 12 or so trees are planted in a raised garden bed at regular and close spacings, allowing their foliage to form a continuous screen, which is along the property boundary. The trees have been pruned in the past to maintain a dense screen. These are the characteristics of a hedge, and it is difficult to imagine that they were planted with any other intent. They have the appearance of a hedge, such that anyone coming to these properties being asked to point to a hedge would no doubt point to these trees. I find that the trees are planted so as to form a hedge.

Mr Davidson made a reasonable effort to reach agreement

12. The Court cannot make an order in these proceedings unless it is satisfied that, firstly, the applicant made a reasonable effort to reach agreement with the respondents (s 14E(1)(a) of the Trees Act) and, secondly, that the applicant gave the required notice of the application (s 14E(1)(b)).

13. Mr Davidson tried negotiating with the Bowers, verbally and in writing, as per the letter included in Exhibit A. He sought mediation, which the Bowers declined. Further negotiations prior to the hearing almost led to an agreement, which ultimately failed, but I was left with the impression that, were it not for some final stepping back by the Bowers, a reasonable agreement might have been reached in the days before the hearing.

14. I am satisfied that Mr Davidson made a reasonable effort to reach agreement with the Bowers.

15. The final hearing was more than 21 days after the application was lodged, allowing for the required notice of the application.

The trees severely obstruct a view

16. The Court cannot make an order in these proceedings unless it is satisfied that the trees are severely obstructing a view from the applicant’s dwelling (s 14E(2)(a)(ii) of the Trees Act).

17. Mr Davidson submits that he had views of Middle Harbour and surrounding areas from the top level of his three-level home when he first came here. The view remained during the period he maintained the hedge as agreed with the Bowers. Since the most recent pruning in April 2022, the trees have grown taller, so that their tops are now above the height of the balcony’s balustrade on his top level.

18. Mr Davidson provided what might be considered ‘before and after’ photographs: photographs taken while the hedge was maintained at its lower height, and more recent photographs taken in late 2023. By the time of the hearing, the hedge had grown still taller than shown in those recent photographs. The photographs were taken from various locations on his top level: from both sitting and standing positions in the master bedroom, the living and dining rooms, and the balcony. While they all support his submissions, it is the living and dining room photographs I focus on here.

19. The top-floor living and dining rooms together represent the area of the dwelling likely to receive the most frequent use. Between these rooms and the balcony are floor-to-ceiling sliding glass doors, providing an expansive outlook to the south. This outlook affords the primary view from the dwelling.

20. Photographs taken in 2021 from well back within the living room show the extensive view that, even from that location, included the water of Middle Harbour. The top of the hedge can be seen well below the balcony’s balustrade. It follows that the closer one was positioned to the glass doors, the more expansive the view became. In the near distance, the view includes other houses and trees. In the far distance, beyond the water, the landscape of Balmoral, Mosman and surrounds can be seen.

21. Photographs from promotional material prior to the 2018 purchase of Mr Davidson’s property show a similar outlook.

22. Photographs taken from a similar location within the living room in late 2023 show the hedge reaching above the balcony’s balustrade and obstructing almost all of the water view. In the near distance, only the tops of other trees remained in the view. Trees in the hedge were also obscuring parts of the distant view. Mr Davidson submits that the obstruction had become severe.

23. The Bowers argue that the trees do not severely obstruct a view from Mr Davidson’s dwelling. They submit that other trees in the neighbourhood and along the foreshore obstruct water views. They took the Court to locations from which the view was least obstructed, such as the western part of the dwelling near the kitchen and the eastern part of the balcony, from where they say the obstruction caused by their trees is minor or, at most, moderate.

24. If I were to quantitatively assess the view obstruction shown by photographs, it appears that over half of the landscape view became obscured by the trees after the pruning agreement ended, and more than 95% of the water view became obscured. By the time of the hearing, when I stood at the same location, the trees were still taller and their obstruction greater.

25. It is often more useful to assess a view obstruction qualitatively, rather than quantitatively. In the view-sharing principle established in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140, Roseth SC (at [28]) used the following qualitative terms to describe the extent of view loss: negligible, minor, moderate, severe or devastating.

26. With the benefit of Mr Davidson’s earlier photographs, and having stood in his living room, I find that the view obstruction caused by trees in the Bowers’ hedge is more than moderate, but less than devastating: it is severe.

Balancing of interests

27. The Court must not make an order in these proceedings unless it is satisfied, at s 14E(2)(b), that: “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.”

28. I have considered the severity and nature of the view obstruction above. Matters that might suggest some undesirability of interfering with the trees are generously included in the list of matters that the Court is to consider at s 14F of the Trees Act.

29. The trees are planted on the respondents’ property close to the common boundary. They form a tall, dense screen along the common boundary, only 2 metres or so from Mr Davidson’s dwelling.

30. The trees have grown to obstruct the view during Mr Davidson’s occupation of his dwelling. That is, he earlier enjoyed the view that the trees now obstruct. The Bowers argued that the Court cannot make orders that would give Mr Davidson a view he did not have earlier. I accept that the purpose of any orders should not be to increase view access beyond what was available to the applicant, but I find that the orders Mr Davidson seeks aim to restore his view, not expand it.

31. Northern Beaches Council’s consent is not required to prune or remove these trees. They are exempt for two reasons: they are cypress pines and they form a hedge.

32. The trees have no historical, cultural or social value. They provide some limited ecosystem services including cooling, shading and carbon sequestration. They have limited environmental benefit beyond this. They are introduced trees that are not part of the local ecosystem.

33. The trees contribute to amenity of both the respondents’ property and the applicant’s property, but their principal value, as submitted by the Bowers, is their contribution to privacy. Mr Davidson’s dwelling is upslope from the Bowers’ and, were it not for the trees, overlooking is possible from Mr Davidson’s balcony into the Bowers’ back garden and, they submitted, into the back part of their dwelling.

34. Mark Griffiths, a real estate agent engaged by the Bowers, gave evidence that potential buyers of the Bowers’ property told him that the back garden feels private with the trees at their current height. Mr Davidson pointed out that neighbours to his west can see down into the Bowers’ garden, as the hedge does not extend to their property. Mr Griffiths assured the Court that the same potential buyers saw no problem with this, but would be bothered by overlooking from Mr Davidson’s balcony if the hedge’s height is reduced. I found Mr Griffiths’ evidence to be unconvincing and give it little weight in this decision.

35. Prior to the hearing, Mr Davidson placed a length of orange string along the hedge at the height he proposed for future maintenance. The string was close to the boundary, approximately 400 mm above the top of the boundary fence adjacent to his pool. Mr Davidson submitted that he had maintained the hedge approximately 250 mm above the string.

36. During the site view, while standing on Mr Davidson’s balcony, the Bowers pointed out that the string was below a direct sightline from a standing position on the balcony to the back wall of their dwelling. They argued that pruning as Mr Davidson proposed would therefore remove the privacy provided by the hedge and open up overlooking to their dwelling. However, their submissions on this point ignored two facts. Firstly, the string was below the proposed pruning height. Secondly, and more importantly, the Bowers ignored the depth of the hedge. The trees are approximately 2 metres across, so that the top of the hedge extends from the boundary approximately 2 metres to the south into the Bowers’ property. If the orange string was placed at the same height, but along the southern face of the hedge rather than along its northern face, this would represent the extent of the hedge’s screening at that height. I note that there would be little or no overlooking at that height, and if the hedge was only a little taller, I am confident that there would be no significant overlooking. That is, considering the principal aim of each party – the applicant’s view and the respondents’ privacy – there is no need to weigh them against each other, as it appears both could be satisfied if the hedge was maintained at a suitable height.

37. Perhaps more significant factors when considering reasons to avoid interfering with the hedge are the impacts of pruning on the hedge. Now that it has grown without pruning for more than two years, reducing its height will leave bare branches exposed at the top of the hedge. This will be seen primarily from above, from Mr Davidson’s balcony – less so from the Bowers’ garden below. The hedge’s appearance will be adversely impacted for a period. The loss of foliage at the top of the hedge may also make the hedge less opaque, as a screen, so the Bowers’ privacy might also be impacted temporarily. These impacts will reduce over time as regrowth becomes established. If the Bowers determine at any point that they would prefer to remove their hedge, that is a matter for them.

38. At s 14F(s) of the Trees Act, the Court is to consider “such other matters as the Court considers relevant in the circumstances of the case.” I also consider here the work required to maintain the hedge, and whether this can, or will, be reasonably carried out. Through the pruning works undertaken between 2018 and 2022, Mr Davidson has demonstrated that the hedge can be maintained, at least its top and its northern face along the boundary. Despite previously undertaking the pruning, and despite offers prior to the hearing to maintain the hedge, Mr Davidson submitted that he now wants orders for the Bowers to maintain the hedge, including its northern face along the boundary. Given that his offers to continue pruning as per the earlier arrangement were refused, his proposal is understandable. If the Bowers are to maintain the hedge, they will require access to Mr Davidson’s property. Pruning of the hedge’s top and northern face is more readily undertaken from within Mr Davidson’s property.

39. The Bowers have had the opportunity to prune the hedge as requested or, even more favourably for them, to allow Mr Davidson to prune the hedge in a manner that would restore his view while maintaining their privacy. They have refused. Orders will direct them to carry out annual pruning during a defined period.

Conclusion

40. Considering all of the matters above, I find that orders should be made to maintain the hedge at a height that restores the view that Mr Davidson previously enjoyed from his dwelling, while maintaining privacy provided by the hedge. That height is approximately 70 cm above the top of Mr Davidson’s boundary fence (the common boundary shared with the Bowers) adjacent to his pool. The northern face of the hedge, along the common boundary, should be pruned at the same time. The Bowers may prune the hedge’s southern face as they see fit. Orders will direct the Bowers to engage a contractor to prune the trees. Should they not complete the works during that period, Mr Davidson can undertake the works and be reimbursed for any cost of the works. The Davidsons may also remove the trees at any time.

Orders

41. The Court orders:

1. The application is granted to the extent of the following orders.

2. For as long as the trees remain on the respondents’ property, during Spring (September–November) each year, beginning Spring 2024, the respondents are to engage at their cost a suitably qualified horticultural contractor or arborist to prune all trees in the hedge along their northern boundary as follows:

1. reduce their height so that no part of any tree in the hedge is more than 700 mm above the top of the section of fence on the common boundary directly south of the applicant’s pool.

1. prune the northern face of the hedge so that no part of any tree in the hedge extends across the common boundary shared with the applicant.

3. The works in Order (2) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

4. The respondents are to give the applicant at least 7 days’ notice of each occurrence of the works in Order (2).

5. The applicant is to allow access to his property for each occurrence of the works in Order (2) during reasonable hours of the day.

6. If the works in Order (2) are not completed by the end of November each year, the applicant may engage and pay for a suitably qualified horticultural contractor or arborist to carry out the pruning works specified in Order (2) by the end of the following January.

7. If the applicant engages a contractor to carry out the pruning works as per Order (6), the applicant is to give the respondents at least 7 days’ notice of the works.

8. If the applicant engages a contractor to carry out the pruning works as per Order (6), the respondents are to allow access to their property for the works during reasonable hours of the day.

9. If the applicant engages a contractor as per Order (6), the applicant may provide the respondents with a copy of a paid invoice for the works within 30 days of the works being completed.

10. If the respondents receive a copy of a paid invoice as per Order (9), within 14 days of its receipt they are to pay the applicant the invoice amount.

11. The exhibits are returned, except for Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 06 August 2024