Greig v Wolff

[2022] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:

Greig v Wolff [2022] NSWLEC 1267

Hearing dates:

15 November 2021
Site view 16 February 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is upheld to the extent of the following orders.

(2) Within 30 days of the date of these orders, the Respondent is to engage and pay for a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances to prune all trees in Hedge 1 (shown as trees T1–T8 on p 11 of Mr Home’s report, Exhibit 3), reducing them to the level of the adjacent hardstand area.

(3) Each year during November, beginning November 2022, the Respondent is to engage and pay for a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances to prune all trees in Hedge 1 (shown as trees T1–T8 on p 11 of Mr Home’s report, Exhibit 3), reducing them to a height 20 cm above the level of the adjacent hardstand area.

(4) The exhibits are returned, other than A, B and 3 which are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicant has lost access to views – privacy and other benefits of the trees – orders for pruning

Legislation Cited:

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

Cases Cited:

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

Category:

Principal judgment

Parties:

Vivian Greig (Applicant)
Diane Wolff (Respondent)

Representation:

Counsel:
T Hale (Applicant)
J Farrell (Respondent)

Solicitors:
Beatty Hughes & Associates (Applicant)
Boskovitz Lawyers (Respondent)

File Number(s):

2021/68294

Publication restriction:

No

Judgment

Background to the application

1. Commissioner: Vivian Greig (the Applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for her neighbour Diane Wolff (the Respondent) to prune and maintain trees in two hedges for access to views from her property.

The hearing

2. The hearing in these proceedings took place via audio-visual means on 15 November 2021. Counsel for the parties were Mr Hale (for the Applicant) and Mr Farrell (for the Respondent).

3. Expert evidence was filed with the Court prior to the hearing. The Applicant relied on two visual impact reports from John Aspinall, an architect. The respondent relied upon a planning report from George Karavanas (town planner) and an arboriculture report by William Home, an arborist. All three experts attended the hearing, spoke to their reports and were cross-examined.

4. At the conclusion of the online hearing I determined that a site view would assist my decision. Subsequently, I visited both properties on 16 February 2022 to inspect the trees and views.

Framework for this decision

5. Part 2A of the Trees Act provides a limited jurisdiction for those who find neighbouring trees obstruct their sunlight or views. Firstly, at s 14A:

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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

6. Ms Greig’s application includes trees in two hedges. Ms Wolff does not dispute that the trees are planted so as to form hedges. Trees in both hedges are more than 2.5 metres tall. The trees are not on Crown land. Therefore, Pt 2A of the Trees Act applies to the subject trees.

7. Before the Court can make any orders, the jurisdictional tests at s 14E of the Trees Act must be satisfied.

14E Matters of which Court must be satisfied before making an order

(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.

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

(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.

8. Ms Greig has corresponded with Ms Wolff over some time. They have discussed the trees, but they have been unable to reach a satisfactory agreement. I am satisfied that Ms Greig’s efforts to reach agreement were reasonable (s 14E(1)(a) of the Trees Act).

9. In dispute are: whether trees in each of the two hedges severely obstruct Ms Greig’s views (s 14E(2)(a)(ii) of the Trees Act); and, whether Ms Greig’s interests outweigh reasons to avoid interfering with the trees (14E(2)(b)).

10. Before making any orders, the Court must consider the matters set out at s 14F of the Trees Act.

The trees

11. Eight Leyland Cypress trees (Cupressus × leylandii) (T1–T8) form a hedge (Hedge 1) beginning at the parties’ common boundary within Ms Wolff’s front setback, several metres from the front boundary, and extending at an angle of approximately 45° away from the front boundary. The trees are approximately 6 metres tall, in good condition. They have been maintained as a hedge with regular pruning.

12. Five juniper trees (possibly Juniperus sp.) (T9–T13) form a hedge (Hedge 2) in Ms Wolff’s front setback near her western boundary, furthest from Ms Greig’s property. These trees are approximately 6 metres tall and in good condition.

13. Other trees growing on Ms Wolff’s property, on Ms Greig’s property, and elsewhere, are relevant to certain considerations in this decision. Ms Greig’s application referred to seven trees in Hedge 2, although only five trees make up that hedge. Throughout this judgment I use the tree numbering applied by Mr Home in his report on the trees (Exhibit 3).

The views

14. Ms Greig’s land is to the east of, and upslope from, Ms Wolff’s land. Views are to the west, and potentially include Sydney Harbour, Sydney’s CBD, the Harbour Bridge, Rose Bay, and surrounding suburbs.

15. Ms Greig’s dwelling is over two levels, with an additional roof terrace. She claims views are lost from several view points on both levels. Ms Greig’s application listed four points (V1–V4) from which views are obstructed. Mr Aspinall and Mr Karavanas used different numbering systems to identify the view points, so for clarity I include the various numbering systems in the table below. Throughout this judgment I refer to views V1–V4, being the four general viewing areas described in Ms Greig’s application.

Application	Aspinall report	Aspinall supplementary report	Karavanas report
V1 & V2 Study & 2nd dining (not in application)
V1 – Ground floor Main living room Reception room	V1 (standing) V2 (sitting)	V5 (previously V1) V1 (standing)	V3 – V10
V2 – Ground floor Dining room	V3	V2	V11 – V12
V3 – First floor Bedrooms	V4	V3	V13 – V24
V4 – First floor Rear bedroom	V5	V4	V25
V26–V29 Roof terrace (not in application)

16. The reports of Mr Aspinall and Mr Karavanas include view photographs taken from different positions in each room: some taken close to the windows, others taken from further back within the room. I have considered this in assessing the value of views and the degree of their obstruction. My assessment was also assisted by the site view.

Trees in Hedge 1 severely obstruct a view from the Applicant’s dwelling

17. Although it is clear that trees in Hedge 1 obstruct a view, to some extent it is unclear whether the obscured view is significant. Ms Greig says it is, while Ms Wolff thinks not. Where Ms Greig says water and landscape views would be available if not for the hedge, Ms Wolff says that view would be obstructed by other trees and houses, leaving a limited water view. They each relied on their experts.

18. Mr Aspinall undertook some photo montage exercises, blending photos taken from Ms Greig’s viewpoints with others taken on the other side of the hedges. Mr Karavanas thought Mr Aspinall’s methodology was inaccurate, removing vegetation that would still obstruct the views and therefore presenting a false picture of views that would be available without the hedges. Following initial criticism, Mr Aspinall provided a supplementary report, responding to the criticism and adjusting some of his photo montages. Mr Farrell, Counsel for the Respondent, questioned Mr Aspinall on the accuracy of his methodology during the hearing. Photographs used to assist the photo montages were taken using a drone some 20 metres from the Applicant’s windows, so the perspective they show of other vegetation might differ widely from the Applicant’s actual views. My decision to undertake a subsequent site view arose partly from a sense of being unable to rely on the accuracy of Mr Aspinall’s photo montages.

View V1

19. View V1 is from the ground floor living area and the smaller reception room, both of which have west-facing outlooks toward the harbour and the CBD. The reception room has curved windows providing an outlook dominated by vegetation, including Hedge, and the sky. Mr Karavanas found that, from here, Hedge 1 caused a minor obstruction of district views and potentially of a view of the interface between land and the water of the harbour. In his original report, Mr Aspinall found that views of the harbour and CBD were severely obstructed by Hedge 1, and he repeated this finding in his supplementary report. Mr Aspinall’s photo montages on pp 9 and 11 of his original report demonstrate this via photo montages, however Mr Hale questioned Mr Aspinall on their accuracy, given that other landscape features appeared to be absent in the representations of the views without the hedge.

20. With the benefit of the site view, I find that Hedge 1 does severely obstruct the view from the living room. Having observed the view from first-floor windows above the living room, from where the harbour and landscape are seen above the hedge, I gained an appreciation of the view that might be available. It is a valued view that includes water, the land-water interface and district views, providing a sense of one’s position in the surrounding landscape. It is not only Hedge 1 that obstructs this view. Branches of other trees beyond the hedge, in particular a jacaranda (T19) and a willow myrtle (T18) on Ms Wolff’s property, are also within the view line. However, they do not provide a dense screen that entirely blocks the view, as the hedge does. Furthermore, the jacaranda is deciduous, losing its leaves for a few months of the year. And while Mr Home identified some storm damage in the willow myrtle’s upper crown, he failed to mention significant structural defects in its stem – splits and decay – that, relying on my own arboricultural expertise, give the tree a very short Useful Life Expectancy (ULE), rather than being ‘moderately suitable for preservation’ as Mr Home described it. Houses further downslope from the Respondent’s property would obstruct only the lower part of the view, leaving the water view available from here. The large, living room windows provide an easy outlook to this potential view, one that might be enjoyed frequently by residents and visitors. With these considerations in mind, and using the qualitative terms used by Senior Commissioner Roseth in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”) at [28], I find the obstruction caused by Hedge 1 from the living room is more than moderate but less than devastating: it is severe.

View V2

21. View V2 is from the dining room, the next room back from the living room. Mr Aspinall described the potential view in the same terms as he described for V1, and again found that Hedge 1 severely obstructed the view. However his photo montage fails to demonstrate this. Mr Karavanas found that Hedge 1 had no real impact on this view.

22. I find that Hedge 1 does not severely obstruct view V2. Mr Aspinall’s photo montage on p 13 of his original report shows only a minor change to the potential view if Hedge 1 is removed. The dining room is further back from the street, limiting the potential for views when compared with V1. If I did find the obstruction was severe, I would also consider the smaller size of the dining room’s windows compared with the large living room windows. The view potential here is diminished, such that I would be disinclined to make orders on this basis.

Views V3 and V4

23. The applicant does not claim that Hedge 1 obstructs views V3 and V4.

Hedge 2 does not severely obstruct a view

24. The five junipers, T9–13, grow along Ms Wolff’s western boundary. Ms Wolff has grown them to screen the built form of the dwelling to her west. Just to their north is a peach tree (T14) and to their south a macadamia tree (T15) and a willow myrtle (T16). Branches of the peach tree and the willow myrtle spread in front of, and above, the trees in Hedge 2 when viewed from Ms Greig’s property.

View V1

25. Although Ms Greig claimed in her application that Hedge 2 obstructs view V1, Mr Aspinall’s photo montage for this view shows that removing trees in Hedge 2 would not provide a view of the harbour, which would remain screened by other nearby vegetation including mature trees of Araucaria species. Neither Mr Aspinall nor Mr Karavanas found that Hedge 2 severely obstructs this view. Likewise, I find no severe view obstruction to View V1 by Hedge 2.

View V2

26. Mr Aspinall’s photo montage suggests that a decent view of the harbour and the CBD would be available from the dining room in the absence of Hedge 2. He found Hedge 2’s obstruction of the view to be severe. Mr Karavanas, on the other hand, found Hedge 2 had virtually no impact on this view, due to the presence of other vegetation obscuring the view.

27. It seems to me that Mr Aspinall’s photo montage overestimates both the potential view from V2, as well as the impact of removing Hedge 2 on that view. In creating the photo montage, Mr Aspinall has removed foliage of the peach (T14) and the willow myrtle (T16). I observed during the site view that the view corridor available from the first floor between those two trees is relatively narrow. In particular, the photo at the top of p 13 of his original report shows that, from the dining room window, the peach tree makes a greater obstruction to the view than trees in Hedge 2. Because foliage of the peach tree and the willow myrtle extends more broadly lower in their crowns, the view corridor is even narrower from the ground floor. Mr Aspinall’s photo montage also seems to downplay the obstruction caused by the built form immediately to Ms Wolff’s west. The dwelling there, which includes a roof terrace, is close to Ms Wolff’s western boundary. Trees in Hedge 2 extend little more than a metre beyond the top of the building. Yet Mr Aspinall represents a gain of more than 2 metres by removing the hedge (bottom photo of p 13 of his original report) and has removed the peach tree’s foliage along with the hedge. Due to the narrow view corridor available between surrounding trees, and the distance of that narrow corridor from the dining room windows (Hedge 2 is more than 20 metres from Ms Greig’s dwelling), I find that trees in Hedge 2 do not severely obstruct view V2.

Views V3 and V4

28. From the first-floor bedrooms the view includes the CBD and the harbour. Mr Aspinall found that trees in Hedge 2 severely obstruct the view from both front and rear bedrooms on the first floor. His photo montages on pp 15 and 17 of his original report show that, in the absence of the hedge, the extent of water view available to these windows would increase. Mr Karavanas found that any view obstruction caused by Hedge 2 was minor, due to the presence of other trees and vegetation.

29. Relying on Mr Aspinall’s photo montages, the extent of water view gained by removing the hedge is such that I am not convinced it demonstrates a severe obstruction caused by the hedge. To me, the hedge makes a moderate contribution to the view obstruction at most. Furthermore, it seems again that the impact on the view of the built form to Ms Wolff’s west is underestimated in the photo montage. Ms Greig has a view of the CBD and harbour from these windows, and where the view is obstructed, that is caused primarily by other vegetation and buildings. As a result, I do not find trees in Hedge 2 cause a severe obstruction of a view.

Hedge 1 should be pruned to restore a view

30. At s 14E(2)(b) the Court must be satisfied that the benefits to the Applicant of making orders outweigh any reasons to avoid interfering with the trees. This requires consideration of the trees’ benefits to the Respondent, as well as their benefits to the community and surrounding environment, as set out at s 14F.

31. Having found above that only trees in Hedge 1 cause a severe obstruction of a view, I consider the s 14F matters relating only to these trees.

32. Hedge 1 begins in Ms Wolff’s front setback at the common boundary shared by the parties and extends diagonally away (to the north-west) from the front of the property. They provide a dense screen some 10 or more metres from Ms Greig’s dwelling.

33. Ms Greig has lived at her property since 1989. She wrote that the hedge was planted in or around 2000 by the previous owners of Ms Wolff’s property, who then maintained it at a shorter height than its current height. Directly north of the hedge is a hardstand car-parking area. Ms Greig wrote that the trees were maintained at a height below the level of the hardstand and did not obstruct her views. Ms Greig explained in her supplementary statement of 3 November 2021 (Exhibit C), at para 6, that her view was described and considered in a 1988 decision of this Court (copy included in Exhibit C)..

34. The trees were allowed to grow taller after Ms Wolff bought the property. Thus the trees were planted and have grown to obstruct the view during the period that Ms Greig has lived here.

35. Leyland Cypress are exempt from any consent requirements from Woollahra Council for their removal or pruning.

36. Relying on Mr Home’s report, Mr Farrell opined in written submissions that five of the trees in Hedge 1 were shown on plans in a 1970 development consent. During oral submissions, Mr Farrell corrected this, saying the plan was not part of a development consent. A drawing in Mr Home’s report shows the five trees, but it does not show that they were a condition of consent, nor that there was any requirement for them to grow to a specified height. The plan predates the time that Ms Greig says the trees were planted by some 30 years.

37. Trees in Hedge 1 can be seen from the street, so they contribute to public amenity, but not significantly so. They provide some shading and cooling. Their main benefit is to Ms Wolff’s property. Mr Farrell submitted that Hedge 1 provides a windbreak and privacy to Ms Wolff’s swimming pool. Mr Hale submitted that the pool is more than 3 metres lower than the adjacent car-parking hardstand area, so the trees’ current height is not required for privacy.

38. Lowering the height of trees in Hedge 1, or removing them entirely, would enable a view toward Rose Bay, the harbour, and the landscape beyond. Other trees, notably the jacaranda (T19) and the willow myrtle (T18) partially obstruct that view, but those trees allow views through their branches, while the dense wall of foliage formed by Hedge 1 entirely obscures the view. Further diminishing the impact of those other trees is the jacaranda’s deciduous habit and the willow myrtle’s short useful life expectancy.

30. Ms Greig has made a reasonable effort to persuade her neighbour to take some action. While Ms Wolff has proposed alternative orders in response to the application – pruning the trees to the height of the adjacent railing rather than Ms Greig’s proposed pruning to the level of the adjacent hardstand area – she did not carry out that pruning. Such action would not have reduced the hedge’s benefits while Ms Greig might have found the view was restored to a degree that was sufficient to dissuade her from commencing these proceedings.

31. The obstructed view is valuable – the harbour and Rose Bay provide a valuable view. The view is from the main living room. These factors are among those to be given weight in Tenacity’s view-sharing principle. I have considered the impact of the obstruction on the whole of the property, not just the view from the living room, as per the third step of the Tenacity principle. While other views are available, the large windows of the living room provide the principal viewing area of the dwelling. The trees’ impact on Ms Greig’s property is significant – in my mind, more significant than any loss to Ms Wolff resulting from pruning the trees to restore the view.

32. Ms Greig seeks orders for the trees to be pruned and maintained annually at the height of the adjacent hardstand area used for parking cars. Mr Home wrote at para 1.8 of his report that the trees “…could be modified without affecting the long-term health and vigour…” but thought that the Applicant’s proposed height would impact their health and vigour. He wrote that the trees would tolerate pruning to the top of the balustrade along the hardstand edge, but that pruning further than this would provide no greater view access for the Applicant. With the benefit of the site view, I find that reducing the trees’ height further, closer to the level of the hardstand area, would provide a greater benefit to Ms Greig. The trees would remain viable, although as Mr Home suggested, their tops will appear woody for some time, thus reducing their amenity value. This might have been avoided had Ms Wolff pruned the trees earlier.

33. Ms Greig’s proposal for annual pruning in November is reasonable. Orders will be made for the trees to be pruned to the level of the hardstand now, with annual pruning in November 20 cm above this to allow for regrowth to establish above the reduced stems. As is usual in these matters, the Respondent will arrange and pay for the pruning. Access to Ms Greig’s property should not be required for the works.

Orders

43. As a result of the above, the Court orders:

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

2. Within 30 days of the date of these orders, the Respondent is to engage and pay for a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances to prune all trees in Hedge 1 (shown as trees T1–T8 on p 11 of Mr Home’s report, Exhibit 3), reducing them to the level of the adjacent hardstand area.

3. Each year during November, beginning November 2022, the Respondent is to engage and pay for a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances to prune all trees in Hedge 1 (shown as trees T1–T8 on p 11 of Mr Home’s report, Exhibit 3), reducing them to a height 20 cm above the level of the adjacent hardstand area.

4. The exhibits are returned, other than A, B and 3 which are retained.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 25 May 2022