El-Ammar v Cheaitani (No 2)

[2023] NSWLEC 1475

Land and Environment Court

New South Wales

Medium Neutral Citation:

El-Ammar v Cheaitani (No 2) [2023] NSWLEC 1475

Hearing dates:

28 April 2023

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – were the trees planted to form a hedge - do the trees form a hedge – are views severely obstructed – balancing of interests

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 14, 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

El-Ammar v Cheaitani [2023] NSWLEC 1034

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

McDonald v Sheehan [2022] NSWLEC 1159

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Annotated Trees (Disputes Between Neighbours) Act 2006

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

File Number(s):

2023/54666

Publication restriction:

Nil

JUDGMENT

This decision was reserved.

1. COMMISSIONER: Anthony and Diane El-Ammar, the applicants, occupy a two-storey dwelling on sloping land in Greenwich, from which they gain views of the Sydney CBD and their heavily vegetated district, across the respondent’s property. They share a side boundary with the respondents, Atef Cheaitani and Diana Cheytani. Mr and Mrs El-Ammar purchased their two-storey property in 2003, and claimed that since then, trees in the respondent’s property had grown to create a severe obstruction of views from their dwelling.

2. An application by the El-Ammar‘s was heard by Gray C on 27 January 2023 and published in El-Ammar v Cheaitani [2023] NSWLEC 1034 (El-Ammar). At [5] of El-Ammar, Commissioner Gray described the trees as, “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”.

3. Commissioner Gray determined that four Cypress trees had been planted to form a hedge in 2005, but when three of the four trees were removed before the hearing, there was no longer a hedge, thus the application was dismissed.

4. At [17] of El-Ammar, Commissioner Gray, stated;

“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.”

5. Informed by the initial hearing, Mr and Mrs El-Ammar redefined the hedges in the respondents’ back yard for the purpose of a second application to the Land and Environment Court (LEC), pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), which proposed pruning of hedges in the respondent’s rear yard to remedy a severe obstruction of views from their dwelling.

Onsite hearing

6. Both parties attended the onsite hearing, which commenced with an inspection of the respondents’ back yard. The four Leyland Cypress hedge trees that had formerly screened much of the yard had been reduced to 3 stumps and one 8 metre (m) tall Cypress (T1). T1 contributed to the respondents’ privacy, as noted by Commissioner Gray at [6] of El-Ammar; “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…”

7. The applicants submitted that the respondents’ property contained two hedges subject to the Trees Act, neither of which were included in the initial application of El-Ammar. The first alleged hedge (Hedge 1) primarily comprised T1 from the former hedge’s western end, and a mature Acmena leuhmanii (Lilly Pilly) (T2) growing near the common boundary, about 4 m south-west of the Cypress, along with three smaller adjacent trees.

8. Hedge 2, located along the respondents’ eastern boundary, allegedly comprised three Murraya trees, one old Bottlebrush and one Large Leafed Privet tree.

9. The applicants were particularly focused on the view obstruction from V1, a corner balcony and adjacent living area on the ground floor, though views were also assessed through windows in the kitchen and an adjacent music room, and from a balcony on the first floor.

The applicants’ proposed orders

10. The applicants proposed the following orders:

1. Pruning of the trees to preserve iconic views and maintain (trees) at an appropriate height to provide privacy for the respondents.

2. If the respondents wish to add plants along the boundary, their height must be maintained so as to not obstruct the applicants’ views.

The respondents’ position

11. The respondents lodged two Statements with the Court, on 14 March 2023 and 11 April 2023, requesting withdrawal or dismissal of the application, based on a lack of changed circumstances from the El-Ammar application. The respondents claimed the trees nominated in the new application (LEC No: 2023/54666) comprised different species, planted at different times, which were not planted to form a hedge, and that Hedge 2 did not impact views from the applicants’ property. The respondents noted the trees’ contribution to the privacy of their garden and house, and to the landscaping of their garden, and sought no intervention with the trees.

12. Before the Court has the power to make any orders under the Trees Act, there are a number of jurisdictional tests that must be satisfied. These tests include determining if there are two or more trees that were planted so as to 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.

Jurisdictional requirements – Part 2A

13. Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is required to balance the benefits of the trees against the interests of the applicant.

14. Section 14A(1) places limitations on Pt 2A of the Trees Act, and 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) rise to a height of at least 2.5 metres (above existing ground level).

15. Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land (s 14B(b)), if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.

16. Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.

17. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).

18. Section 14E(1) addresses matters of which Court must be satisfied before making an order, as follows:

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

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

19. Section 14E(2), which is particularly significant, 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.

20. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

Is leave granted for the second application?

21. The initial jurisdictional question is whether the second application satisfies the requirements of the Trees Act for acceptance by the Court. This issue arises at s 7 of Pt 2 of the Trees Act, and precedents considering this question provide guidance for applications under both Pt 2 and Pt 2A of the Trees Act.

22. The following commentary is an extract from pages 10-11 of the Annotated Trees Act, readily available on the Court’s website:

“When the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148).

…

However, it is not possible to make a further application if the circumstances have not changed (McCallum v Riordan & anor [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067).

…

Further, it is not appropriate to make a second application in the hope that a different Commissioner will be appointed to hear the matter and thus might give a different decision to that made on the first application.”

23. The applicants claimed that the second application was fresh and changed from the first as it included hedges comprising different trees to El-Ammar. To the contrary, the respondents asked that the hearing be abandoned because, “it is not possible to make a further application if the circumstances have not changed”, and they claimed the circumstances had not changed. While this is largely true, and most information informing the second application was available prior to the first application, the following considerations led me to grant leave for the second application:

1. I accept that the applicants claim that at the El-Ammar hearing, they were surprised to find that three of four trees in their first application had been removed (rather than pruned), with what they considered a negligible reduction in obstruction of their most coveted views. While there is no jurisdictional impediment to the respondents’ removal of the trees prior to the hearing, I am satisfied the applicants had insufficient knowledge of procedures under the Trees Act to seek leave for alternative proposed orders.

2. Most parties don’t gain legal advice or representation when engaged in action under the Trees Act, and in most cases, legal advice or representation is unnecessary as the relative simplicity of both the evidence and the Trees Act usually allows for straightforward resolution of cases. Indeed, the relative informality and emphasis on self-representation is an aim and strength of the Trees Act in providing equitable access to justice. In the case of El-Ammar, however, where key facts changed between the application and the hearing, I consider that the applicants were disadvantaged by their lack of knowledge regarding legal procedures and options. This alone does not give rise to a grant of leave for the second application as recourse to legal advice is the choice of all litigants, but in combination with my other reasons, I am satisfied that acceptance of the second application is appropriate.

3. Some merit determinations by Commissioner Gray in El-Ammar, though based on facts and readily available for the Commissioner to make, provided the applicants with an obvious framework for progressing their claims. El-Ammar, at [7], says,

“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 (see Ex A). 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 …”

4. This second application before the Court thus involved applicants motivated to regain views to which they felt strongly entitled. Though the respondents’ tree removals saw the application fail in El-Ammar, Commissioner Gray’s determination that “[t]he views are iconic views to the Sydney city skyline and the top of the Sydney Harbour Bridge” which were “completely obstructed from a sitting and standing position in the centre of the balcony and from within the living area”, at V1, would have encouraged the applicants that a determination of severe view obstruction was probably satisfied. With the lure of iconic views, and ostensibly, only satisfaction of s 14(A)(1) of the Trees Act preventing contemplation of orders, it is unsurprising that the applicants again claimed that trees on the respondents’ land, formed a hedge, or hedges.

24. In light of the reasons above, and the purpose of the Trees Act to resolve protracted disputes over trees, I consider it just and pragmatic for the applicants’ evidence to again be tested against the requirements of the Trees Act.

Do the trees form a hedge?

25. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?

26. 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).

Hedge 1

27. In El-Ammar, Commission Gray determined the four Leyland Cypress subject of the application formed a hedge, and, at [13], said;

“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.”

28. With 3 Cypress removed and T1 thus considered a single tree rather than a member of a hedge, the applicants now claim that T1 forms a hedge with four adjacent trees growing near the common fence line, most notably T2, which, at about 7 m tall, along with T1, most obstructs the applicants’ view from V1. A Golden Cypress, claimed to be a hedge member, was recently removed by the respondents, while the remaining trees of alleged Hedge 1 were nondescript and about 3 m tall.

29. In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), at [44]-[45], Moore SC and Hewett AC, said;

“44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings.

45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

30. The applicants submitted that Hedge 1 should be accepted for the purposes of the Trees Act because “the impression from our viewpoint is a hedge extending along the respondents’ boundary”, and “[t]rees were positioned in linear arrangement and extended 8 – 10 m in width”, which, they claimed, is consistent with [45] of Wisdom. Regardless that the trees satisfied s 14(A)(1)(b) as they were taller than 2.5 m, the determination of whether trees constitute hedges under the Trees Act is not primarily based on the applicants’ perception of obstruction, but by the satisfaction of conditions specific to s 14(A)(1)(a).

31. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), Preston CJ provides commentary in an unsuccessful ‘hedge’ appeal under the Trees Act. At [39]-[43], His honour, discussing the language of s 14A(1)(a) says:

“[39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge.

[40] Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.

[41] But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge.

[42] The factors considered by the Commissioner in determining whether the Turpentine was planted so as to form a hedge with the palms (in paras 28-30) were not factors that were excluded as irrelevant by s 14A(1)(a) of the Trees Act.

[43] Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine.”

32. Hedges may be comprised of two trees, but when representations are made that a hedge is comprised entirely or primarily of only two trees, there is a distinct onus on the applicants to prove relationships between the trees that satisfy the requirements of the Trees Act. Typically, this would involve trees of similar species and form, planted relatively close together, at the same time.

33. At [40] of Johnson, his Honour said; “[w]hat is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape”. T2 is located about 4 m south-west of T1, which is an unusually broad gap for a hedge planting with these species. Though T1 displayed good vigour and had the capacity to grow large, about 18 years after their alleged planting, T1 and T2 were still sufficiently distant that their canopies had not merged and their appearance was not hedge-like. The other claimed members of Hedge 1 were smaller trees with smaller gaps between them but no obvious uniformity or pattern to their spacing, and a deviation at T2 of about 45% was required to link T1 to the small Hedge 1 trees further south along the common fence line. Claims that the trees formed a linear pattern were not persuasive as a straight line may be formed between every pair of trees, and a deviation of about 45 degrees in a hedge of only five trees is very unusual.

34. There is no need to further consider the small boundary trees as both the view obstruction, and Hedge 1’s engagement of the jurisdiction, is based on T1 and T2. The small boundary trees contributed little to the hedge other than ostensibly making up the numbers.

35. With respect to Johnson at [41], each of the alleged hedge trees are of a different genus and species, and are dissimilar in form, structure, and foliage. The Leyland Cypress is a conifer, covered entirely with scale leaves, and without flowers as such, while the Lilly Pilly is a flowering tree with conspicuous branches and delicate, pendant leaves with drip tips. The differences in form, foliage, and appearance between the Leyland Cypress tree and the Lilly Pilly are not subtle, they are stark. While Leyland Cypress are renowned as ‘hedge trees’, along with some species of Lilly Pilly, the dissimilarity between T1 and T2 is too great for them to appear compatible when grown near each other.

36. The applicants claimed that “the trees were planted with the intention to form a hedge at the time of planting to create a privacy screen along the boundary of the respondents’ land”, and that T2 was planted in about 2005, about the same time as T1 and its three neighbouring Leyland Cypress hedge trees, “to extend this privacy screen”. To substantiate this submission, the applicants claimed T2 was visible in satellite images from 2009, and that after about 15 years, T2 is now about 7 m tall.

37. Conversely, the respondents submitted that their yard contained established trees upon their occupation, to which they had added from time to time. They said any linear pattern or hedge-like appearance formed by planting trees along the common fence lines resulted from designing for useable space in the middle of their narrow yard, rather than from any intent to plant a hedge or hedges.

38. Satisfaction of the intent informing “planted so as to form a hedge” requires that T1 and T2 were planted at the same time. It is axiomatic that one tree cannot constitute a hedge. Though tree appearance is an inexact means for estimation of age, this Lilly Pilly species is long lived, and based on the arboricultural expertise I bring to the Court, T2 appeared to be much older than T1, with particularly small leaves, and signs of stunted stem extension growth. Therefore, I was satisfied that T2 had been in situ for longer than T1.

39. In Johnson, his Honour determined that a Turpentine tree could not have been planted so as to form a hedge with a row of palms because it was planted 45 – 55 years before the palms, and, at [43], stated; “[i]f the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine.”

40. As I am satisfied that T2 is older than T1, T2 was thus already established upon the 2005 Leyland Cypress hedge planting. As with the Turpentine tree in [43] of Johnson, T2 “cannot later acquire the status of being planted so as to form a hedge” by the Leyland Cypresses (including T1) being planted to form a hedge in proximity to T2.

41. Though the applicants claimed T1 and T2 were both about 15 years old, and the trees “age, form, spatial arrangement and species would suggest that they have been intentionally planted as a privacy screen…”, this is contradicted by site evidence. As I noted at [37], “each of the alleged hedge trees are of a different genus and species, and are dissimilar in form, structure, and foliage”, “the dissimilarity between T1 and T2 is too great for them to appear compatible when grown near each other”, and any linear form the trees present is compromised by the 45 degrees kink at T2.

42. The applicants provided no explanation for the large gap of about 4 m between T1 and T2, which compromised screening for the respondents, notwithstanding that the applicants claimed screening for privacy motivated the respondents to plant T2 as a hedge with T1. The applicants’ satellite images showing T2 present in 2009 did not contradict my finding that T2 preceded T1.

43. In the scenario postulated by the applicants, in 2005 the respondents planted the hedge from El-Ammar, comprising four Leyland Cypress trees, about 1 m apart to provide future privacy. At about the same time, the respondents planted T2, a different species of dissimilar appearance, 4 m away from T1, as an extension of the hedge. Why would one break with uniformity and use another species if the intent of planting T2 was to extend the Cypress hedge’s screening, when Leyland Cypress is ideal for this role? Similarly, why have an incongruous 4 m gap between T1 and T2, if the intent of planting T2 was to extend the Cypress hedge’s screening? Why not plant more trees separated by smaller gaps to provide more uniform spacing and more effective screening?

44. The scenario above is implausible and the applicants failed to provide sound explanations to these fundamental ‘planting’ questions, as required to substantiate that T1 and T2 form a hedge for the purposes of the Trees Act. The applicants’ planting scenario was possible, but was not probable, and I was more persuaded by the respondents’ submissions suggesting they occasionally planted trees and shrubs near the garden edges to optimise central yard space. Consequently, s 14A(1) of the Trees Act is not satisfied for Hedge 1.

Hedge 2

45. The applicants submitted that five trees comprise Hedge 2. The largest tree, contributing most to applicants’ view obstruction, is a Ligustrum sp. (Large Leaf Privet), while the other trees are a Callistemon sp. (Bottlebrush), and three Murraya paniculata (Murraya).

46. I am not satisfied that the Privet tree is a member of a hedge for the purpose of the Trees Act, as it almost certainly grew from a self-sown seed, rather than being planted “by human agency”. As submitted by the respondents, Large Leaf Privet is classified a weed due to its profuse seeding and ready germination. It is found extensively throughout gardens and bushland of Sydney, especially north of Port Jackson. While there is no legislative restriction on its sale, the invasive potential of Large Leaf Privet is appreciated by the nursery industry, and I have not encountered it available for sale during my 45-year career in arboriculture and horticulture.

47. In Johnson, at [13] – [15], his Honour explored the jurisdictional distinction between the planted and self-sown trees:

“13 …The Johnsons submit that the Commissioner erred in his construction of the word 'planted'. They submit that 'planted' is interchangeable with 'situated' or 'located'. The Johnsons refer to meaning no 24 in the Macquarie Dictionary’s definition of the transitive verb 'plant' of 'to locate or situate'.

14 Hence, the Johnsons submit, the phrase in s 14A(1)(a), ‘trees that are planted (whether in the ground or otherwise) so as to form a hedge’, should be construed as only requiring that trees be situated or located in the ground or otherwise so as to form a hedge. The Johnsons submit that such a construction would allow for inclusion of trees that are self-sown, that is trees that grow from a naturally occurring seed.

15 I reject the Johnsons' submission as to the meaning of the word 'planted' for two reasons…”

48. His Honour concluded his analysis, at [30] – [31] of Johnson, as follows:

“30 …This analysis of the word 'planted' in the context of the adverb clause of purpose, 'so as to form a hedge', corroborates the construction I have earlier found that the word 'planted' means put or set in the ground or otherwise by human agency.

31…For these reasons, the Commissioner did not err in interpreting the word 'planted' in s 14A(1)(a) as requiring human agency to put or set a tree in the ground or otherwise for growth and as excluding a self-sown tree.”

49. I am also not satisfied that the Bottlebrush tree, located adjacent to the Privet, was a member of Hedge 2, as it was long established and senescent, and of a starkly different appearance to neighbouring trees. The three Murraya trees were distinctly younger than the Bottlebrush and thus were not present when the Bottlebrush was planted. This is the same scenario as with T2 in Hedge 1, whereby the Bottlebrush “cannot later acquire the status of being planted so as to form a hedge” by the Murraya trees being planted to form a hedge in proximity to the Bottlebrush. As the applicants provided no substantiated evidence to link the Bottlebrush to the planting of a hedge, I am not satisfied that the Bottlebrush met the requirements of s 14A(1)(a) of the Trees Act.

50. The three remaining Murraya trees were closely planted in a row along the respondents’ eastern boundary and are a species commonly used for hedges and screening. With two Murraya trees about 2 m tall and the third about 4 m tall, the circumstances relate to those considered at [66] of Wisdom:

“66 As a consequence, the four of the trees, T 4 through to T 7 satisfy the jurisdictional test as to height. Although trees T 2, T 3 and T 8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual.”

51. This guideline from [66] of Wisdom has been consistently applied by the Court, where two or more of the trees with a height of at least 2.5 m, fulfils the prerequisite for the hedge to engage s 14A(1)(b) of the Trees Act. In this case, however, only one of the three Murraya trees is tall enough to satisfy the 2.5 m height requirement, so s 14A(1)(b) of the Trees Act is not satisfied for Hedge 2. Even if s 14A(1)(b) had been satisfied for the three Murraya trees, their relatively small size would result in a view obstruction determination that was far less than severe.

52. Consequently, s 14A(1) of the Trees Act is not satisfied for either Hedge 1 or Hedge 2, and thus the Court has no powers to make orders. Therefore, there is no need to consider the applicants’ effort to reach agreement, at s 14E(1)(a), the assessment of obstruction of views from the applicant’s dwelling as a consequence of any or all of the trees in the hedge, at s 14E(2)(a)(ii), nor to balance the nature and extent of obstruction against considerations amongst s 14F that augur against intervention, at s 14E(2)(b) of the Trees Act.

Discretionary considerations – s 14F

53. Had the jurisdiction been engaged, however, and determination of the balance between the parties’ interests in s 14E(2)(a)(ii) been required, relevant matters in s 14F would be considered, as follows:

1. The trees contribute to the local ecosystem by providing habitat for possums and birds (s 14F(g)).

2. The trees contribute to the natural landscape and scenic value of the land on which they are situated (s 14F(h)).

3. The extent of pruning sought by the applicants was likely to impact the health and longevity of the Lilly Pilly. The respondents resisted financing the applicants’ proposed pruning regime (s 14F(k)).

4. The trees made a significant contribution to the respondents’ privacy and protection from the sun and wind. This was acknowledged by Commissioner Gray at [6] of El-Ammar and was obvious upon viewing the respondents’ yard from the applicants dwelling (s 14F(l)).

5. Section 14F(n) considers “any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction”. The respondents removed three of the Leyland Cypress hedge trees prior to the El-Ammar hearing, and one 4 m tall Golden Cypress tree overhanging the common boundary on 11 April 2023. The Leyland Cypress removals significantly reduced CBD view obstruction from the applicants’ kitchen, adjacent music room, and upper floor balcony.

Conclusion

54. The onus is on the applicants to prove their case in accordance with the jurisdictional requirements and limitations of Pt 2A of the Trees Act. On the strength of El-Ammar, the applicants claimed that five trees comprised ‘new’ Hedge 1 and stressed the relationship between T1 and T2 to engage s 14A(1)(a) of the Trees Act. T1 was the Leyland Cypress from the hedge’s western end while T2, a long-established Lilly Pilly, was about 4 m away.

55. Any claim that five trees of different species and height form a hedge under the Trees Act requires strong substantiation, but the applicants’ case was contradicted by the site evidence. T1 and T2 were around the same height, but were markedly dissimilar in appearance, form, structure, foliage and flower. The other alleged hedge trees were less than half the height of T1 and T2.

56. Satisfaction of s 14A(1)(a) of the Trees Act by Hedge 1 required the respondents to have planted T2 along with or soon after planting the Leyland Cypress hedge, with the intention of forming a hedge with T1, even though the trees are 4 m apart and have not melded after 20 years. While the applicants submitted evidence to support this scenario, it was speculative rather than factual, and it failed to persuade me that T2 was planted so as to form a hedge with T1.

57. In McDonald v Sheehan [2022] NSWLEC 1159, at [7], Galwey AC summarised requirements established in Johnson for satisfaction of s 14A(1)(a), as follows:

“7 Firstly, the Court must be satisfied that the trees were intentionally planted, rather than growing from seed spread by wind or birds or the like. Secondly, the intentions at the time of planting must include establishing a hedge. And thirdly, the trees must still form a hedge in the present.”

58. For Hedge 1, I am not satisfied that the intention upon planting T2 included establishing a hedge with T1. To the contrary, I am satisfied that T2 is an individual amenity tree. For Hedge 2, I am satisfied that the Privet was self-sown, and that the Bottlebrush was planted long before the Murraya trees, making both the Privet and Bottlebrush trees ineligible for hedge membership. As only one of the three Murraya trees was at least 2.5 m tall, Hedge 2 failed to satisfy s 14A(1)(b) of the Trees Act.

59. Obstruction of views and view sharing is dynamic and must consider normal tree growth, changing privacy requirements, and efforts to prevent or rectify obstructions, as resulted from the respondents’ tree removals. The prior existence of a view does not imply any ongoing right to a view under the Trees Act. Though the applicants were particularly motivated to reinstate previously available views from their living room and level 1 balcony, the third step of Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 at [28], which the applicants referenced, provides for assessment of the impact of view obstruction, “for the whole of the property, not just for the view that is affected”. In this context, it is unreasonable for the applicants to ignore the available views and view improvements from the kitchen, music room and first floor balcony resulting from the respondents’ tree removals, simply because their preferred view was obstructed from the ground floor balcony.

60. Even if I was wrong, and the trees did form a hedge and the view obstruction was considered severe, the privacy, shading, and ecosystem services the trees provide are important to the respondents and the environment, and the proposed heavy pruning would have negative impact on the Lilly Pilly’s structure and health. In such circumstances, factors that favour the retention of the trees intact may outweigh the benefits to be obtained for the applicants through removal of the view obstructions.

61. The applicants’ lack of procedural knowledge in the El-Ammar hearing and revelations in the El-Ammar judgment would not alone have resulted in my grant of leave for the second application to proceed, thus no precedent should be considered on this basis. My decision was influenced particularly by the changes of site circumstances between the application and the hearing of El-Ammar, and by specific commentary of Commissioner Gray.

62. In El-Ammar, at [11] – [12], Commission Gray determined that Leyland Cypress trees did not form a hedge, regardless that they were planted for that purpose, because only one tree from the hedge remained present and intact. In this second application, the applicants claimed that the respondents’ trees formed hedges, but did not provide adequate evidence to prove, on the balance of probability, that trees were planted so as to form hedges, or to account for questions arising from incongruous circumstances related to alleged hedge members.

63. As the evidence thus fails to engage s 14A(1)(a) of the Trees Act, the Court has no power to make orders. Consequently, the Court orders are:

1. The application is refused.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 22 August 2023