Fussell v Forte

[2022] NSWLEC 1742

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fussell v Forte [2022] NSWLEC 1742

Hearing dates:

10 October 2022

Date of orders:

10 October 2022

Decision date:

10 October 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent’s dwelling side wall which faces the applicants’ property, and the termination of the hedge near the south-western corner of the respondent’s property.

The hedge shall be pruned to a height not exceeding 300mm above the height of the common boundary fence, along the fairly horizontal section nearest to the respondent’s dwelling, and along the adjacent main sloping section of the fence, and this sloping pruning line shall be continued to the rear of the hedge at the same trajectory, regardless of the fact that the fence steps down along its last few metres.

(2) The respondent, at her expense, shall maintain the section of the hedge specified in Order (1), so that at no time in the future, following the pruning specified in Order (1), shall the hedge exceed a height of 300mm above the height of the common boundary fence, other than at the south-western end, where the specifications in Order (1) apply.

(3) All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required to the applicants’ property to undertake these pruning works, the applicants shall grant such access upon receipt of at least 48 hours written notice.

(5) All works shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction – severity of obstruction outweighs privacy considerations

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2A

Trees (Disputes Between Neighbours) Regulation 2019

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Haindl v Daisch [2011] NSWLEC 1145

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

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

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Bradley Stuart Fussell (First Applicant)
Kylie Louise Fussell (Second Applicant)
Suzen Alise Joy Forte (Respondent)

Representation:

Counsel:
H Esplin (Solicitor) (Applicants)
D Loether (Solicitor) (Respondent)

Solicitors:
Esplins Solicitors (Applicants)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/204778

Publication restriction:

No

Judgment

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

1. COMMISSIONER: This is an application submitted under s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Bradley and Kylie Fussell against the owners of trees growing on an adjoining property in Austinmer, on the Illawarra coastline.

Background

2. Mr and Mrs Fussell, the applicants, and the respondent, Ms Suzen Forte, enjoy views over and along Austinmer beach through an arc from east to south. The most desirable views from the applicants’ property are gained across the respondent’s rear yard, and the applicants claim that these views have been severely obstructed by a hedge planted along the common rear yard boundary by the respondent. The common boundary runs from about north-east at the front to north-west at the rear.

3. In January 2015, Ms Forte sold her property to the applicants, but retained ownership of the adjoining property located closer to the ocean. At that time, Ms Forte‘s residual property contained a garage but no residential dwelling, thus allowing a relatively clear view corridor to Austinmer beach and the ocean. Material advertising the sale, included by the applicants, described the property as “One of a handful of rare beachfront homes in Austinmer with prized NE facing aspect and never to be built out ocean and beach views.” “This home looks onto Norfolk pines, golden sands and straight out to sea!”

4. Ms Forte, with her husband, Mr Mark Forte, received conditional development application (DA) approval in August 2015 from Wollongong City Council (Council) for a two-storey dwelling with a rear yard swimming pool on Ms Forte’s property. Construction commenced in December 2015 and was completed around December 2018.

5. Mr and Mrs Fussell also undertook a major renovation of their dwelling during 2018. They stressed that these works were restricted to the existing building footprint, but it included a second storey addition, and thus presented the spectre of oversight of the respondent’s land, and privacy concerns.

6. In mid-2018, conflict arose between the parties, initially over a boundary fence, and subsequently as a result of the Tiger Grass (Thysanolaena maxima) planted by the respondent along the common boundary, which had grown above the fence and was increasingly obstructing the applicants’ view.

7. On 6 April 2020, the applicants’ solicitor submitted a complaint to Council, alleging breaches of DA conditions by the respondents, which covered fencing and obstructed views. DA consent condition 6 included, “Landscaping at the rear of the property on the western boundary should preserve view corridors across the site where attainable”.

8. Council dismissed the applicants’ complaint but noted in their reply of 12 May 2020, that following a site inspection and discussion with Mr Forte, the respondent was “aware of the possible height of this plant species (Tiger Grass)”, and intended to use it “to camouflage the western timber fence which measures 1.5m in height” and that “[t]he owner advised that these plants will be trimmed periodically to a similar height of this fence.”

9. During 2020, the applicants attempted to organise mediation with the respondent through a Community Justice Centre (CJC) but no response was received. Throughout early 2022, negotiations continued between the parties’ solicitors, without resolution. The applicants’ solicitor sent a final notice to Ms Forte’s solicitor on 7 April 2022, and the application was filed with the Court on 13 July 2022.

10. In their application, Mr and Mrs Fussell seek the following orders:

1. That the respondent removes the row of Tiger Grass (Trees) planted along the western boundary of the respondent’s property within 30 days of the date of these orders.

2. In the alternative to order 1, that the respondent trim and maintain the Trees so that they are no higher than the fence at the western boundary of the respondent’s property within 30 days of the date of these orders.

3. The respondent is to pay for the works carried out pursuant to orders 1 and/or 2 above.

4. Such further or other orders as the Court sees fit.

11. In response, Ms Forte opposes intervention with the Tiger grass, as it provides a privacy screen for her family, particularly around the swimming pool.

The on-site hearing

12. The hearing commenced with an inspection of the Tiger Grass in the respondent’s rear yard and was largely conducted with the parties’ legal representatives.

13. The Tiger grass had been planted in a near straight row, close to the common boundary. Though photographs (at pages 146 and 147 of the applicants’ folder) displayed the Tiger grass forming a dense screen, prior to the hearing its height had been pruned and clumps had been bound up with twine, presumably to lighten its appearance. I measured the height of various stems, and each exceeded 2.5 metres.

14. The Court moved to the applicants’ house, which, as expected, is designed to capitalise on the ocean views, with a rear dining area (V2) / kitchen (V3), large glass windows and doors, and an adjoining rear deck (V1). The Fussell’s also nominated the view from the rear yard as V4 and reiterated that views of the beach and ocean surf which they enjoyed from V1, V2 and V3 upon their occupation in 2015, are all now obstructed by the Tiger grass.

Jurisdictional requirements – Part 2A

15. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

16. The first test is s 14A(1), that is, is the Tiger Grass a hedge for the purpose of the Act?

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

18. Tiger Grass is prescribed in the Trees (Disputes Between Neighbours) Regulation 2019 as a “tree” for the purpose of the Act. At least 10 plants have been planted in a fairly straight row along the boundary, and thus s 14A(1)(a) is engaged.

19. Onsite, I measured various Tiger Grass stems exceeding 2.5 metres in height, one being 2.64m and another about 2.6m. In Wisdom v Payn [2011] NSWLEC 1012 at [66]-[67], it was determined that as long as two or more trees in the ‘hedge’ have reached the prerequisite height of 2.5m, the entire ‘hedge’ is deemed to have satisfied the test in s 14A(1)(b).

20. As a consequence, s 14A(1) of the Act is satisfied.

21. Section 14C of the Act has been satisfied as the applicants have provided 21 days’ notice of the lodging of the application and the terms of any order sought to:

1. the owner of the land on which the trees are situated, and

2. any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the trees, and

3. any other person the applicant has reason to believe will be affected by the order.

22. Next, s 14E(1)(a) of the Act requires that the applicant has made a reasonable attempt to reach agreement with the owner of the land on which the trees are situated.

23. Copies of extensive communication between the parties were included in the application, exposing a protracted acrimonious relationship. Nonetheless, the applicants attempted to organise mediation through a CJC, extensive negotiations were undertaken by the parties’ solicitors, and the applicants’ demands were clearly expressed.

24. The respondent claimed that s 14E(1)(a) of the Act had not been met because the applicants had rejected her “reasonable offer of pruning”. This requirement of the Act does not stipulate rules or guidelines regarding the nature of negotiations between the parties, rather it requires the applicants to make a reasonable effort to reach agreement with the respondent. The applicants’ effort in this case, detailed above at [3], is at the higher end of the Court’s expectations.

25. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (“Robson”), Preston CJ analyses s 10(1)(a), which applies to the requirement of ‘making a reasonable effort to reach agreement’ under Pt 2 of the Act. This commentary applies equally to the same test in s 14E(1)(a) for Part 2A applications.

26. At [195], his Honour notes:

“[195] The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process. For example, s 88K(2)(c) of the Conveyancing Act 1919 and s 40(2)(d) of the Land and Environment Court Act 1979 provide that the applicable court should not make an order imposing an easement over land unless it is satisfied that “all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful”. The requirement that “all reasonable attempts” be made is more demanding than “a reasonable effort” to reach agreement.”

27. While a concerted effort to negotiate an amicable and mutually acceptable outcome is desirable before an application under this Act is made to the Court, the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur, and thus s 14E(1)(a) is deemed to be satisfied.

28. The next step is to assess the severity of the obstruction of all or any of the views from the applicants’ dwelling as a consequence of any or all of the trees in the hedges.

29. Section 14E(2)(a)(ii) states:

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

(a) the trees concerned:

…

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

30. Four viewing points were nominated by the applicants, with V1-V3 respectively applied to the rear deck, rear dining area, and kitchen, while V4 was the view from the rear yard. V1-V3 satisfy the jurisdiction of the Act, as the Court has consistently accepted that decks and balconies attached to a dwelling are part of that dwelling, however the Act does not apply to V4 in the back yard, as this is not “a view from a dwelling situated on the applicants’ land”.

31. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”).

32. The first three steps of the four-step process outlined in Tenacity at [26]-[28], are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained – views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views; and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected – the impact on views from living areas is more significant than from bedrooms, and it is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

33. Analysing this site through the prism of Tenacity’s first step, the respondent submitted that the applicants’ view encompassed a broad arc either side of their primary view gained across the rear of their property. This outlook is centred on the main coastal thoroughfare and the face of a closely spaced long row of mature Norfolk Island Pines which largely prevent visual access to the beach, and the ocean beyond.

34. This seems a reasonable submission based on the Court’s interpretation of the words “a view” in Haindl v Daisch [2011] NSWLEC 1145 (“Haindl”) at [26], which states:

“However, we are of the opinion that the words a view used in s 14 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.”

35. In the context here, however, a more nuanced assessment is necessary. In Haindl, at [64], Moore SC and Hewett AC, note:

“It is clear to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both qualitative and quantitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point.”

36. Facing east, south-east from the applicants’ viewing points, a distinct wide gap between two Norfolk Pine’s on the beachfront provides for “views of golden sands and straight out to sea!” These are the views that the applicants covet, and they note that the crucial views are those below the horizon – the water, waves and sand. It is reasonable here to consider these views as “iconic” as they include water views and the interface between land and water at close proximity, and they are outstanding relative to the dense Norfolk Pine barrier bordering the beach and the district views to the south and south-west.

37. The respondent submitted that this view was already blocked by the respondent’s Strelitzia (Strelitzia nicolai) located in a planter box at the rear of her dwelling, and the Norfolk Pines on the beachfront. The Strelitzia does block the view but currently only to a minor extent as it is located at the perimeter of the potential view close to the respondent’s dwelling. Similarly, while Norfolk Pines do impact the view, the distinct wide gap between two Norfolk Pines in close proximity provides for an excellent framed view, albeit across a relatively narrow arc.

38. I am satisfied that consideration of the view obstruction should focus primarily on this arc as a consequence of the quality of the natural features potentially visible between the two Norfolk Pines, as it is the absence of this view that would significantly reduce the applicants’ amenity, and likely also their property’s value.

39. This desired view between the trees to the beach is a side view gained across the respondent’s back yard. Noting Tenacity’s second step, the respondent submitted that “the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries.” (Tenacity at [27]).

40. In the respondent’s DA for their dwelling and pool from 2015, consent condition 6 included, “Landscaping at the rear of the property on the western boundary should preserve view corridors across the site where attainable.” Though Council dismissed the applicant’s complaint regarding the DA compliance of the respondent’s landscaping, the rationale provided by Council was that the language of the consent condition was ‘should’ rather than ‘must’, and thus it was not an enforceable DA condition.

41. Regardless, the intent of this condition remains relevant. When the applicants occupied their property, an open view corridor to the beach was attainable. It is only the respondent’s action of growing the Tiger Grass, contrary to the objective of consent condition 6, that now renders this view corridor obstructed. As a consequence, the difficulty of protecting views across side boundaries is discounted in this case.

42. Considering the third step of Tenacity, there is no need to distinguish between the three nominated locations, other than recognising that maximum potential views are available from the applicants’ deck (V1), and that the breadth and extent of available views reduces as one moves deeper into the living room (V2), and kitchen (V3), at the rear of the applicants’ dwelling. The desired views remain largely identical, however a standing rather than sitting position is likely to be required inside the dwelling.

43. In applying those principles to this matter, the view in contention is a view of water and the interface with the land in close proximity, across a side boundary. Though the Strelitzia and a beach umbrella as well as trees in the distance beyond the boundary impact on the view, from each viewing location, particularly V2 and V3, either sitting or standing, the majority of the desired water view is obscured by the respondent’s Tiger Grass hedge.

36. As a consequence, I consider this to be a severe obstruction which satisfies the requirements of s 14E(2)(a)(ii) of the Act.

37. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

(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.

46. The respondent submitted that the significance of the view obstruction does not outweigh the benefits the respondent gains from the retention of the existing hedge. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required:

• (a) The hedge is located in the respondent’s property, loosely parallel to their rear yard western boundary. The respondent submitted that the hedge is distant from the applicants’ dwelling, but the applicants’ land is relatively narrow and the nominated viewing points are between about 3m and 13m from the hedge.

• (b) The trees were planted around 2018.

• (c) The trees have grown to their current height since that time.

• (d) The trees are not protected by Council’s tree management controls. The site on which the hedge is growing is not listed as a heritage item, nor is it located in a Heritage Conservation Area.

• (e) While the respondent claims that the Tiger Grass planting does not breach any development consent from their 2015 DA approval, consent condition 6 clearly displays an intent for the respondent to maintain view corridors across their site. The lack of enforceability of this consent condition does not extinguish its objective.

• (f) The Tiger Grass has no historical, cultural, social or scientific value, and is likely to make only a minor contribution to biodiversity, perhaps as habitat for fauna (g).

• (h) The hedge provides a minor contribution to the natural landscape and a moderate impact on the scenic value of the land on which they are situated, but it is not of a size or in a sufficiently prominent location to provide intrinsic value to public amenity (i).

• (k) The Tiger Grass was reduced in height by the respondent not long before the hearing. This species was apparently chosen with consideration of its hardiness and tolerance of salt winds, with Mr Forte noting that it “was both resilient and could grow in extreme conditions”. It is similarly tolerant of programmed pruning for maintenance of height. The respondent claimed that Mr Forte did not make representations to Council that he would prune the hedge, contradicting Council’s letter to the applicants of 12 May 2020, which was discussed above at [8].

• (l) The hedge plays an important role in providing privacy for the respondent. Having said this, given that the applicants’ desired view was conditional on a view corridor across their land, as displayed in promotional material employed by the respondent to sell their dwelling to the applicants, it is unreasonable and disingenuous to expect complete privacy without view sharing.

• (l) I am not persuaded by the respondent’s claims regarding exposure to viewing from motorists or pedestrians passing beyond their rear boundary. Ms Forte’s property is elevated well above the main thoroughfare. Reducing the hedge height may reduce privacy from this direction, but only marginally, whereas the rear section of the hedge constitutes a distinct visual barrier to the applicants. Further, should they wish, the applicants may view the respondent’s back yard from their second storey, regardless of the hedge’s height.

• (m) While the respondent’s Strelitzia, and Norfolk Pines on the beachfront, do impact the applicants’ view, the primary vector obstructing the view to the beach and ocean is the hedge.

• (p) The hedge is evergreen.

• (q) The view of the beach, waves and ocean is severely obstructed. District views remain available to the applicants.

• (r) The views are from a dining room, kitchen and deck.

Conclusion

47. Having considered the discretionary factors in s 14F of the Act, I am satisfied that the severity and nature of the obstruction is such that the applicants’ 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.

48. Only a minor modification of the hedge is required to provide the applicants with a significant improvement to the amenity they gain from their dwelling while the resultant loss of privacy and amenity to the respondent is relatively minor.

49. The extent of pruning ordered takes in consideration the respondent’s existing east side fence that creates a low visual barrier for the applicants. There is no reasonable basis to order pruning below this height.

50. Though the respondent submitted a claim for costs, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention in this case. As to orders for legal costs, Commissioners do not have powers to make such orders. This requires submission of a Notice of Motion to the Court, which is heard by a registrar or a judge.

Orders

51. As a consequence of the foregoing, the orders of the Court are:

1. Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent’s dwelling side wall which faces the applicants’ property, and the termination of the hedge near the south-western corner of the respondent’s property. The hedge shall be pruned to a height not exceeding 300mm above the height of the common boundary fence, along the fairly horizontal section nearest to the respondent’s dwelling, and along the adjacent main sloping section of the fence, and this sloping pruning line shall be continued to the rear of the hedge at the same trajectory, regardless of the fact that the fence steps down along its last few metres.

2. The respondent, at her expense, shall maintain the section of the hedge specified in Order (1), so that at no time in the future, following the pruning specified in Order (1), shall the hedge exceed a height of 300mm above the height of the common boundary fence, other than at the south-western end, where the specifications in Order (1) apply.

3. All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

4. Should access be required to the applicants’ property to undertake these pruning works, the applicants shall grant such access upon receipt of at least 48 hours written notice.

5. All works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 09 January 2023