Eaton v Morris

[2016] NSWLEC 1314

Land and Environment Court

New South Wales

Medium Neutral Citation:	Eaton & anor v Morris & anor [2016] NSWLEC 1314
Hearing dates:	29 July 2016
Date of orders:	29 July 2016
Decision date:	29 July 2016
Jurisdiction:	Class 2
Before:	Fakes C; Durland AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; amended application
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Applicants: Peter Eaton and Leanne Eaton Respondents: Warwick Morris and Lee Hardwick
Representation:	Applicants: J Goodwin (Solicitor) Respondents: Ms N Hammond (Barrister)   Solicitors: Applicants: Wood Marshall Williams Pty Ltd Respondents: Watson & Watson Solicitors
File Number(s):	153024 of 2016

Judgment

1. COMMISSIONERS: In April 2016 the applicants applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of ten trees growing on the respondents’ property to a height of 3m and their subsequent pruning to that height every five months.

2. The orders are sought on the basis that the respondents’ trees severely obstruct views of the Sydney CBD, Opera House and Harbour Bridge from the front verandah of the applicants’ Mosman dwelling.

3. The trees the subject of the application are described as ‘conifer trees’ and numbered from 1-10. The trees identified in the plan in the application claim form are located along the northern boundary of the respondents’ front garden and immediately adjoining the applicants’ front garden.

4. In July 2016, the respondents removed all except one of the trees identified in the applicants’ claim form. The stumps were left in order to indicate the location and number of trees removed. On 20 July 2016, the respondents’ solicitors wrote to the applicants’ solicitors advising them of the tree removal and suggested the application be withdrawn.

5. On 22 July the applicants’ solicitors wrote to the respondents’ solicitors and stated that as it had been difficult to determine how many trees formed the hedge when the trees were alive, although nine trees had been removed, the applicants consider that the remaining trees close to the respondents’ dwelling are still obstructing part of the view from their front verandah. As a consequence, the applicants sought to amend the application to include those trees.

6. In response to an Online Court request to amend the application, the Assistant Registrar advised the applicants’ solicitor that an application to amend must be made by way of a Notice of Motion with a supporting affidavit. The applicants were advised to file and serve those documents by noon, 28 July 2016, the day before the hearing. In response to this late request, the respondents’ solicitor advised that while they did not oppose the amendment they may require some time to consider their position.

7. The parties were advised that the Notice of Motion would be heard on site on the scheduled day of the hearing.

8. On the basis that the respondents were satisfied on their own assessment of the situation that the Court’s jurisdiction would not be engaged, the respondents did not oppose the amendment of the application to include additional trees, however, the respondents were unclear as to what additional trees were included.

9. As a consequence, the applicants were granted leave to rely on the amended application and the hearing commenced on the respondents’ property.

10. In applications made under Part 2A of the Trees Act there are a number of jurisdictional matters which must be sequentially satisfied. The first is whether the trees, the subject of an application, are trees to which the Part applies (s14A).

11. Section 14A(1) states:

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

12. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard.

13. The plan in the amended application claim form shows what are described as “remaining trees”. One of those trees is the last remaining Leyland Cypress tree in the row of ten trees the subject of the original application. This is now an isolated tree and is no longer part of a hedge. This tree is beyond the Court’s jurisdiction.

14. The other “remaining trees” are identified by a small box drawn adjoining the north-western corner of the respondents’ dwelling. The diagram would suggest that the two remaining Leyland Cypress along the common boundary might have been the trees identified by the box; however, on site, the first applicant maintained that an additional five trees (Juniperus virginiana ‘Skyrocket’) planted in an arc adjoining the remaining Cypress were also part of the amended application. While we expressed some disbelief that the applicants could not have seen these trees from the street, in putting the applicants’ case at its highest, we permitted the inclusion of these trees as a second hedge as they had not been planted at the same time as the Leyland Cypress.

15. As the trees are in excess of 2.5m high, they are trees to which the Part applies.

16. Whilst we were on the respondents’ property, we were invited to stand on the verandah and look across to the applicants’ property. The respondents retained the single Cypress in order to screen the view of a heavily lopped tree on the applicants’ property. The respondents also value the remaining Junipers and Cypress as they screen a front bedroom from the applicants’ property and partly from the street. The respondents object to any pruning of these remaining trees.

17. The key test in applications made under Part 2A is found in s 14E(2) which states:

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

(a)   the trees concerned:

(i)   are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii)   are severely obstructing a view from a dwelling situated on the applicant’s land, and

(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.

18. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant’s land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.

19. The use of the word ‘are’ in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52].

20. In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature of the view, the second the location from which the view is seen; including views available from the whole of the property, and the third considers the use of the rooms from which the views may be affected. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.

21. The Court has also considered the meaning of ‘a view’ in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state:

26   However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

22. In a number of decisions, the Court has considered the dictionary meaning of ‘severe’. Perhaps the most apposite to ‘hedge’ cases is the word ‘extreme’. Thus the legislature has set a high bar in using the word ‘severely’ in Part 2A of the Trees Act.

23. The views in question include views of iconic structures such as the Opera House and harbour Bridge.

24. The amended application retains the four viewing positions on the applicants’ front verandah. It would appear from the text that the view from viewing point 4 is still obstructed. This viewing point is the recessed return at the southern end of the west facing verandah. The views are generally oblique views to the southwest across a side boundary and across the top of the heavily lopped tree on the applicants’ property.

25. We observed generally unobstructed panoramic views of the city skyline, Opera House, Harbour Bridge and North Sydney skyline from most parts of the verandah. It was only from the furthest and most recessed corner of the southern end of the verandah that the respondents’ trees blocked views of the city CBD and the Opera House; however the Harbour Bridge was still visible.

26. In applying the consistent approach taken in assessing Part 2A matters involving obstructions of views, we have determined that there is no severe obstruction of a view from the applicants’ dwelling as a consequence of the trees the subject of the amended application. As s 14E(2)(a)(ii) is not met, the matter must be dismissed.

27. The Orders of the Court are:

1. The applicants are granted leave to rely on the amended tree dispute application and amended tree dispute claim form filed on 28 July 2016.

2. The application is dismissed.

________________________         

Judy Fakes

Commissioner of the Court

_______________________

Lisa Durland

Acting Commissioner of the Court

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Decision last updated: 29 July 2016