Hellier v Paver

[2015] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hellier & anor v Paver & anor [2015] NSWLEC 1235
Hearing dates:	24 June 2015
Date of orders:	24 June 2015
Decision date:	24 June 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	Trees (Disputes Between Neighbours); hedge; obstruction of views; some trees not planted so as to form a hedge; obstruction not severe; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Johnson v Angus [2012] NSWLEC 192 Liddell v Jones [2014] NSWLEC 1183 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Peter John Hellier (First Applicant) Narelle Ann Hellier (Second Applicant) Graham Kent Paver (First Respondent) Jill Eileen Paver (Second Respondent)
Representation:	Counsel: David Newhouse, solicitor (Applicants) Janine Wilson, solicitor (Respondents)   Solicitors: Newhouse & Arnold Solicitors (Applicants) Baker Love Lawyers (Respondents)
File Number(s):	20237 of 2015

Judgment

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

Background

1. Properties facing the lake at Coal Point enjoy peaceful surrounds and water views. Mr and Mrs Paver (‘the respondents’) bought and occupied one of these properties 27 years ago. Mr and Mrs Hellier (‘the applicants’) bought and occupied the adjoining property in 1996. Shortly before the Helliers moved in the Pavers planted a row of trees near the common boundary. Since then they have undertaken further plantings to consolidate this hedge (‘Hedge 1’), which now extends for a considerable length and contains two species: Lilly Pilly and Photinia. Two trees existed in the vicinity of this hedge prior to the first planting - a Lilly Pilly (‘Tree 1’) and a Viburnum (‘Tree 11’). Closer to the lake is a group of three Cotoneasters that the Helliers say forms another hedge (‘Hedge 2’).

2. The Pavers planted the trees in Hedge 1 for privacy in their rear garden. They say that they did not plant the larger Lilly Pilly or the Viburnum and that these trees are not part of the hedge. They also say that they did not plant the Cotoneasters, but value the protection they provide from wind.

3. The Helliers say they had sweeping 120-degree views of the lake from their dwelling when they first moved in; views that are now restricted to 40- or 50-degree views. They say the view loss is caused by trees in both hedges, primarily those in Hedge 1, and to a lesser extent by the three Cotoneasters. Pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) they have applied for the trees to be pruned on an annual basis to a height of 2 metres, which they say will restore their views while maintaining the Pavers’ privacy. They say the Viburnum was present when they moved in but suggest that the Pavers planted it. They say the Pavers have planted the hedge trees close to Tree 11, that its foliage is similar to the hedge trees, and that it therefore forms part of Hedge 1. They concede that Tree 1 is not part of Hedge 1.

4. Earlier this year the Pavers pruned some of the taller trees in Hedge 1 down to heights of around 3 metres, whereas earlier they had grown to be more than 5 metres tall.

Are the trees planted so as to form a hedge and are they more than 2.5 metres tall?

5. The jurisdictional test at s 14A(1)(a) of the Trees Act is that the trees “are planted so as to form a hedge”. In Johnson v Angus [2012] NSWLEC 192, Preston CJ discussed the meaning of this phrase, finding that the trees must not only form a hedge in the present but that also, at their outset, they must have been planted to form a hedge. Solitary trees do not become part of a hedge merely by being surrounded by the hedge (see Liddell v Jones [2014] NSWLEC 1183 at 17-26). The parties agree that Tree 1, the large Lilly Pilly, was not planted to form a hedge. Mr Paver states that he did not plant Tree 11, the Viburnum, and that it was already a 2-metre solitary tree when the first trees in Hedge 1 were planted. I cannot be satisfied that it was planted to form a hedge, therefore the application regarding both Tree 1 and Tree 11 fails. The parties agree that Trees 2-10 and 12-32 were planted to form a hedge.

6. According to s 14A(1)(b) of the Trees Act the trees “must rise to a height of at least 2.5 metres”. Most but not all of these trees are greater than 2.5 metres tall, but that would not prevent orders being made for all trees in Hedge 1 (see Wisdom v Payn [2011] NSWLEC 1012 at 66-68).

7. Mr Paver also says he did not plant the three Cotoneasters. He says it is a species he would not plant. This is a species that grows readily from seeds dispersed by birds. On the balance of probabilities it is most likely they were not planted. They fail the test at 14A(1)(a) – no orders will be made for the Cotoneasters.

Is the view obstruction severe?

8. From their rear deck the Helliers still have extensive water views. They say they have lost views of sections of the lake, including parts where boats sail and the view of the foreshore. Standing out on the deck I observed that although some parts of the view were obstructed, the majority of lake views remained. Seated at the table the obstruction increased slightly, but considering what remained I would not regard the obstruction as severe. It is the overall view that must be considered, not the extent of obstruction of one small part of it. At s 14F(q) of the Trees Act the Court is required to consider “…the nature and extent of any remaining view.” Extensive water views remain available to the Helliers.

9. Moving into the dwelling, the Helliers say they have lost views further to the east through the side windows of the living room and kitchen. Views from the glass door to the south across the lake are not significantly affected. Photos show that before the trees were pruned this year, the views were blocked by the taller trees in Hedge 1. Now that those trees have been reduced to around 3 metres in height, the views are partly available. What is also apparent is that much of the view obstruction through these windows is caused by Tree 1 and Tree 11, trees over which the Court has no jurisdiction, as found above. I am not satisfied that any orders I can make for Trees 2-10 and 12-32 will greatly affect the available view as it stands today. The inevitable conclusion, then, is that I will not make orders and the application will be dismissed altogether.

10. I note that the obstruction was more significant prior to the pruning that occurred earlier this year, and that it is likely to become so again if the trees are not maintained. Hedge 1 is comprised of species that are planted for hedging and require regular pruning to maintain them as a hedge. Mr Paver himself suggested that a height of 2.85 metres would restore views and maintain privacy, and appears to suggest that this is the height at which he will maintain trees in Hedge 1. I observed that a height of 2 metres would maintain most of the privacy he desires. Had I found a severe view obstruction existed, any orders I made for pruning may have been closer to that lower height.

Orders

As a result of the foregoing the Court orders that:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 July 2015