El-Ammar v Cheaitani

[2023] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation:

El-Ammar v Cheaitani [2023] NSWLEC 1034

Hearing dates:

27 January 2023

Date of orders:

01 February 2023

Decision date:

01 February 2023

Jurisdiction:

Class 2

Before:

Gray C

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

TREES (NEIGHBOURS) – Hedge – obstruction of views – whether trees form a hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 s 14A

Cases Cited:

Johnson v Angus [2012] NSWLEC 192

Category:

Principal judgment

Parties:

Anthony El-Ammar (First applicant)
Diane El-Ammar (Second applicant)
Atef Cheaitani (First respondent)
Diana Cheytani (Second respondent)

Representation:

A El-Ammar (Self-represented) (Applicants)
A Cheaitani (Self-represented) (First Respondent)
D Cheytani (Self-represented) (Second Respondent)

File Number(s):

2022/326134

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicants, Mr El-Ammar and his mother Mrs El-Ammar, own property at Greenwich from which they have enjoyed views to the Sydney city skyline. They claim that four trees forming a hedge on the adjoining neighbours property, owned by the respondents, Mr Cheaitani and Mrs Cheytani, have obstructed those views. On 1 November 2022 they lodged an application with the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the removal of the trees.

2. Subsequent to the lodgement of the application, the respondents have taken steps to remove three of the four trees, such that three of the trees are now stumps measuring 40-50cm. Their position is that the remaining tree makes a contribution to the privacy of their garden and house, and to the landscaping of their garden. They also say that, with the removal of three of the four trees, there is no longer a hedge.

3. Before the Court has the power to make any orders under the Trees Act with respect to the trees, there are a number of jurisdictional tests that must be satisfied. These tests include determining if there are two or more trees that form a hedge, and if they severely obstruct a view. It is only if those tests are satisfied that I would then have the power, under the Trees Act, to proceed to make orders to remedy, restrain or prevent the obstruction of views, which can include orders for removal of the trees.

The onsite view

4. The hearing took place onsite, allowing for observations of the trees and observations from the viewpoints from which the applicants say their view has been obstructed. Both the applicants’ and the respondents’ properties are battle-axe lots and are each accessed from different streets. The topography of the area is such that there is a fall with a slope of around 20% from the applicants’ property to the respondents’ property.

5. Beginning on the respondents’ property, we observed the four trees that formed the hedge the subject of the application. Although the Tree Dispute Application refers to there being three trees, there are in fact four. They are Leighton Cypress trees, with trunks that are evenly spaced and roughly perpendicular to the boundary fence, beside a shed that is to the rear of the property. The three trees that were removed are now tree stumps that are approximately 40-50cm in height, without any crown, and the one that remains is approximately 8m tall (T1).

6. Mrs Cheytani took us to the areas of the private open space, and to one of the bedrooms, to demonstrate that T1 provides them with privacy from the windows and balconies of the dwelling on the applicants’ property.

7. We then moved to the applicants’ property, where we observed the views from various viewpoints from which they say their view has become obstructed. The views are iconic views to the Sydney city skyline and the top of the Sydney Harbour Bridge. From a living area and lower balcony, the views were completely obstructed from a sitting and standing position in the centre of the balcony and from within the living area. The applicants contend that they enjoyed uninterrupted views from both those areas to the Sydney city skyline prior to the growth of the hedge. This is supported by photographs that are in evidence (see Ex A). From this level, Mr El-Ammar says that T1 does not offer privacy for the respondents, but another tree on the respondents’ property serves the purpose of protecting that privacy.

8. From the upper balcony and living area, there remains a view corridor to the Sydney skyline between T1 and a tree on another adjoining property.

Do the trees form a hedge?

9. Part 2A is the relevant part of the Trees Act that gives the Court the power to make orders concerning high hedges that obstruct views. However, Part 2A only applies in the circumstances specified in s 14A of the Trees Act, which provides, at (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).

10. This forms the first jurisdictional requirement that is necessary to be met in order for there to be power to make orders concerning the trees. As such, there must be “groups of 2 or more trees that are planted… so as to form a hedge”.

11. In discussing the requirements of s 14A(1)(a) in Johnson v Angus [2012] NSWLEC 192, the Chief Judge, Preston J, makes it clear that this requirement extends to there being a current state of affairs of there being trees planted so as to form a hedge. His Honour explains it in this way, at [28]:

“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.”

12. This means that, in order to satisfy s 14A(1)(a) of the Trees Act, not only must there be two or more trees that have been planted so as to form a hedge at the time that they were planted, but they must continue to be two or more trees that are planted so as to form a hedge.

The trees no longer form a hedge

13. The respondents agree that they planted the four trees, which they planted in 2005 as a hedge in order to contribute to their privacy, landscaping and garden design. The trees were evenly spaced and planted in a continuous manner, with overlapping crowns that have a screening effect. It is clear, therefore, that at the time of planting the trees were planted to form a hedge.

14. At the time that the application was made to the Court in November 2022, the trees continued to form a hedge. This is not disputed.

15. However, they ceased to form a hedge when three of the trees were removed down to their stumps. Those three trees no longer contain any crown so as to form a hedge with T1, the tree that remains. What remains is an individual tree, which does not form a hedge with the stumps that remain due to their small height and lack of foliage.

16. Nor are there any other trees with which T1 could have been said to be planted so as to form a hedge. There are two trees of other species with crowns in close proximity to T1, but they were not part of the Tree Dispute Application and there is no evidence that they were planted so as to form a hedge with T1 and the other three trees.

17. As a result, in the present circumstances, the state of affairs of being planted so as to form a hedge does not continue to the present, contrary to the requirement created by the wording of s 14A(1)(a) of the Trees Act. This means that the jurisdictional precondition contained in s 14A(1)(a) is not met, as the trees are not, at present, planted so as to form a hedge.

There is no power to make any orders under the Trees Act

18. As a result of my finding that the trees are not, at present, planted so as to form a hedge, Part 2A of the Trees Act does not apply. As Part 2A is the only source of power for the Court to make orders to remedy, restrain or prevent an obstruction to views caused by trees, there is no power to make such orders in the present circumstances. I am bound by the power that is given to the Court in Part 2A of the Trees Act, and by any restrictions on that power, including the restriction that Part 2A only applies if the requirements of s 14A(1) are met. As the trees are no longer planted so as to form a hedge, the requirements of s 14A(1) are not met. Therefore, no orders can be made.

19. Accordingly, the application must be dismissed, and there is no need for me to consider the actual view loss caused by T1 or the actual privacy impacts if T1 was to be removed.

20. Prior to the lodging of the application, the parties to the proceedings undertook some negotiation concerning the pruning of the trees, which did not result in an agreement. The dismissal of the application does not prevent the parties from returning to that negotiation to reach an agreed solution for reducing the height of T1 to reduce its impact on the views from the applicants’ property, whilst also maintaining the privacy for the respondents. This is a matter that is entirely between the parties and does not concern the Court.

The final orders

21. As the Court does not have the power to make any orders under Part 2A of the Trees Act in circumstances where the trees are no longer planted so as to form a hedge, the application must be dismissed.

22. The Court orders that:

1. The application is dismissed.

J Gray

Commissioner of the Court

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Decision last updated: 01 February 2023