Jensen v Low and Davis-Low

[2018] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jensen v Low & Davis-Low [2018] NSWLEC 1539
Hearing dates:	23 August 2018; 06 September 2018; 13 September 2018
Date of orders:	19 October 2018
Decision date:	13 September 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	(1)   The application is upheld; (2)   Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 (tradesperson) arborist or horticulturist with all appropriate insurances to remove the 52 Leyland Cypress trees along the southern and western boundaries adjacent to the road; OR (3)   Within 90 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the 52 Leyland Cypress trees to a height so that the top surface of the hedge is no more than 6.0 metres above ground level, and are to maintain the top surface of hedge below 6.5 metres above ground level on an ongoing basis; (4)   If the existing hedge is removed as per Order 2, replanting a hedge of a different species of tree along the same section of the boundary is recommended. The height of this subsequent hedge must be maintained below 5.5 metres above ground level on an ongoing basis; (5)   The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
Catchwords:	TREES (NEIGHBOURS): hedge – loss of views
Legislation Cited:	Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Gillis v Seferian [2011] NSWLEC 1199 Ingham v Pettigrew [2016] NSWLEC 1002 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Texts Cited:	2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) AS4373 Pruning of Amenity Trees WorkCover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	Thomas March Jensen (Applicant) Gavin Low (First Respondent) Marion Davis-Low (Second Respondent)
Representation:	Thomas March Jensen, litigant in person (Applicant) Gavin Low, litigant in person (First Respondent) Marion Davis-Low, litigant in person (Second Respondent)
File Number(s):	2018/169083
Publication restriction:	No

Judgment

Background

1. On the outskirts of Mittagong, both the applicant and respondents live on large residential lots. Mr Jensen (the applicant) has owned his property since 1999. Positioned high up a hill and facing towards the north-east, his house was designed to take advantage of the favourable aspect and the variety of views afforded by the elevation.

2. Mr Low and Mrs Davis-Low (the respondents) live across the road from Mr Jensen. Their property slopes downhill towards the north and north-east. Along the southern and western boundaries adjacent to the road is a dense continuous hedge of Leyland Cypress trees – x Cupressocyparis leylandii ‘Leighton Green’.

3. According to the applicant, the hedge was 2-3 metres tall when he purchased his property in 1991 and his dwelling, built in 2001, had good access to views. Since then, the trees have grown vigorously, as Leyland Cypress will do in an environment as conducive as this. The respondents’ hedge has not been pruned and the trees currently range in height from around 10 metres to more than 14 metres.

4. The applicant contends that the trees severely obstruct views of:

1. Sunrise, morning sky and clouds;

2. Rolling hillsides towards Sydney and Wollongong;

3. Mittagong valley;

4. Mittagong village; and

5. Mount Alexander.

5. The applicant has subsequently applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act) seeking the removal or pruning of the 52 trees.

6. If pruned, he seeks that the hedge be reduced to a height where he can recover these views, and that they be maintained at or below a designated height above ground level, in order to retain the views.

7. The applicant represented himself at the hearing, as did the respondents.

The site inspection and hearing

8. The hearing commenced on site on 23 August 2018. The trees were briefly inspected from the respondents' property.

9. The hedge comprises 52 trees. Trees 1 to 29 run roughly north to south while trees 30 to 52 run approximately west to east. The hedge takes the shape of an open boomerang with the apex pointing towards the Jensen property. In total, it is about 50 metres long. On the roadside, there is an electricity service pole about one metre from tree 29. From this high point, the ground level slopes gently down towards tree 1, while there is a steep slope downhill from tree 29, eastward towards tree 52. The trees positioned lowest down this slope are the tallest in the hedge, likely largely due to greater water availability. This amplifies the visual impression of an impenetrable screen.

10. Various other trees were noted relatively close to the hedge within the respondents’ property; one Liquidambar about 6 metres tall is positioned close to the hedge’s apex, while two Liquidambars, about 7 metres tall, are growing close together a few metres downslope from the first. Further into the property and lower down the north-east facing slope is a Chinese Elm, about 7 metres tall, and a few other deciduous trees, about 6 metres in height. Nearby is an evergreen Cedrus deodara (Himalayan Cedar), about 9 metres tall. It is semi-mature to mature and appears to be growing vigorously.

11. Three Ornamental Pear street trees are also growing on the sloping nature strip beside the section of the hedge containing trees 30 to 52. They are about 7 metres in height.

12. The Court moved next to the Jensen property and assessed the impact on views from the doors and windows along the front of the dwelling. These are consecutively noted in the application as viewing positions 1-6 (V 1-6). V1 is the view from the kitchen door at the south eastern end of the property, while the adjacent V2 is the view from the kitchen, considered by the applicant to be the “main view from the central room of the house.” Up a small set of stairs is V3 from the mezzanine, while V4 – V6, along the north-western end of the house, are from 2 bedrooms and a bathroom. While also offering potentially good views, the impact on V4-V6 is given less consideration than the family areas that contain V1-V3.

13. V7 from the ‘front yard, picnic area’ was also listed in the application but cannot be considered, as views from outdoors/gardens do not fall under the jurisdiction of the Trees Act.

14. While both parties acknowledged that the hedge blocked views, there was contention over the value and significance of some of the views, and the severity of the restriction. Both also offered different opinions about many of the discretionary factors to be considered in s 14F of the Trees Act. Various jurisdictional requirements must be satisfied before these factors become relevant.

15. Judgement was reserved at this site hearing, pending clarification of zoning. A telephone directions hearing was held on 8 September 2018, and an extemporaneous decision was delivered at a second site hearing on 13 September 2018.

The jurisdictional tests

16. Section 14A is clearly satisfied in that there are more than two trees rising to a height of at least 2.5 metres that are planted so as to form a hedge.

17. According to s 14B, the applicant can apply for an order regarding trees that are on adjoining land. Although there is a street between the applicant's property and the respondents’, as explained in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 at [1] – [7], trees across a public street have been held to be "on adjoining land". Morris C and Galwey AC similarly rely on this precedent in Gillis v Seferian [2011] NSWLEC 1199.

18. Section 14E(1) requires satisfaction of the Court:

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

While the respondents highlighted that negotiations had, at times, been difficult and acrimonious, there is clear correspondence from the last five years showing ongoing attempts to resolve the issue.

19. The next critical test is s 14E(2), which states:

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

(a) the trees concerned:

…

(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. Trees in the respondents’ hedge are planted close together forming a dense screen with similar properties to a solid wall – nothing can be seen through it. This is different to the effect of scattered trees with open canopies that allow a filtered outlook to the landscape beyond, as would occur in the absence of the hedge. Although the respondents’ hedge does not obstruct the entire view from the glass doors and windows along the front of the house, it fills the main central part. It significantly changes the outlook so that instead of having a view of the broad landscape, the applicant’s view is dominated by a tall dense barrier directly in front. This is not an inner urban environment, where views are inherently more restricted. It seems reasonable for the applicant to expect broader views, especially when such a view was enjoyed earlier.

21. As Galwey AC notes in Ingham v Pettigrew [2016] NSWLEC 1002 at [39]:

“I accept that the view obstruction caused by the Pettigrew hedge severely affects Ms Ingham’s enjoyment of her property. The jurisdiction was enacted to address situations such as this. As permitted by s 34(2) of the Interpretation Act 1987, for assistance in interpreting “severe obstruction” I refer here to the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW). On page 39 the Review expresses the intended scope of Part 2A of the Trees Act (with my emphasis):

The Court would only have the power to hear matters regarding:

hedges which are both high, and similar to a wall in their visual effect.

hedges which affect people's homes (rather than their gardens or other structures on their property).

cases of severe impact on views and light …”

22. Due to the height and density of the trees in the respondents’ hedge, central in the applicant’s outlook, I find that they cause a severe obstruction of views from the applicant’s dwelling and therefore, s 14E(a)(ii) is satisfied.

23. Different views are impacted along the length of the hedge, but the hedge as a single unit also creates the sense of a restricted and blocked outlook. The hedge is a single element in the landscape and treatment for one part of it will affect the remainder, aesthetically and physically.

24. The Court can then proceed to consider s 14E(2)(b) and the balance between the needs of the applicant, the trees and the respondents. This requires consideration of s 14F of the Act.

1. The trees are wholly located on the respondents' property and satisfy the requirements of the Act with respect to zoning.

2. The trees were planted more than 20 years ago, a few years before the construction of the applicant’s dwelling. Photographs submitted by the applicant show that they were young, small trees which did not yet obstruct the view, when he first owned the property.

3. The trees have grown to their current height during the period the applicant has owned their property;

         (f)        The trees do not have historic or cultural value.

         (g)       They do not appear to provide any significant contribution to the ecosystem nor to biodiversity.

         (h)       The respondents appreciate the hedge’s scenic value and the private space it creates.

         (i)        The trees provide some value to public amenity.

         (j)        The trees’ roots likely benefit soil stability, but they would continue to do so for many years if retained undisturbed within the large stone retaining wall, even if the trees were removed. Concerns by the second respondent about termites infesting the roots in this scenario can be mitigated by occasional professional inspection.

         (k)       Pruning as sought by the applicant would have some detrimental effect on the trees, and I accept that the proposed pruning may severely affect these trees. They have not been pruned before. Reducing them to 6 metres involves cutting relatively young vigorous stems, where strong regrowth is the most likely outcome, but also involves lopping the older main trunks, which would have reduced propensity to regrow strongly.

                    Notwithstanding this, provided they are not pruned too low and they are subsequently well watered, the trees are of a species, age and size that should tolerate pruning without unduly affecting their health or function. The guidelines of AS4373 Pruning of Amenity Trees would not prevent orders for pruning as the standard does not address hedging. Hedging is a common horticultural practice.

         (l)       The hedge contributes to privacy, acts as a windbreak, and provides a perceived security barrier for the respondents’ with respect to car hooliganism on their hilly access road, notwithstanding that the respondents’ dwelling is far from their boundaries. I accept that removing them will extinguish this landscape amenity but find the applicant’s reasons for restoring his view outweigh this loss of amenity. Regular pruning, rather than tree removal, would allow for retention of this landscape amenity, though I readily acknowledge that this would be more expensive than removal, both initially and particularly long term.

         (m)     Mrs Davis-Low contended that removal or pruning of the hedge would reveal other trees on her property obstructing the applicant’s views. While this may occur in the future, these other trees are currently sufficiently small, and lower down the slope, that their impact is minor. Unlike the hedge, they are also mostly deciduous. The only notable evergreen tree is the Cedrus deodara. It is about 30 metres in from the southern boundary, at a much lower level on the hillside, and thus unlikely to severely impact views.

                   Of all other obstructions, the three Ornamental Pear street trees are likely to have the greatest impact, but this is likely to be only minor to moderate.

          (n)    The applicant has offered in the past to contribute to the cost of removing the trees, but not to pruning. The respondents considered pruning a preferable solution as it allowed for retention of the benefits considered in s 14F(l). While both acrimony, and these different aims led to a breakdown of negotiations, the respondents could have taken earlier action that would have avoided the present predicament.

          (o)    The trees are evergreen and the view obstruction is year-round.

          (p)    The view includes the natural landscape, trees, cleared land and sky.

          (q)    All viewing spots along the applicant’s house have views restricted by the hedge. V1-V3 which are from living areas of the house, have severely restricted views.

Conclusions

25. Pruning or removing the trees comes at considerable expense. However, the advantages to Mr Jensen seem greater and I accept that orders should be made to remedy the view obstruction. Some trees in the hedge may represent more or less obstruction, but the hedge is a single component of the landscape.

26. As per s 14D(2) of the Trees Act, the orders will allow the respondents the option of pruning and maintaining the existing hedge, or removing the entire hedge and maintaining any replacement hedge if they so desire.

Orders

27. The Court orders that:

1. The application is upheld;

2. Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 (tradesperson) arborist or horticulturist with all appropriate insurances to remove the 52 Leyland Cypress trees along the southern and western boundaries adjacent to the road;

OR

3. Within 90 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the 52 Leyland Cypress trees to a height so that the top surface of the hedge is no more than 6.0 metres above ground level, and are to maintain the top surface of hedge below 6.5 metres above ground level on an ongoing basis;

4. If the existing hedge is removed as per Order 2, replanting a hedge of a different species of tree along the same section of the boundary is recommended. The height of this subsequent hedge must be maintained below 5.5 metres above ground level on an ongoing basis;

5. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

………………………………

J Douglas

Acting Commissioner of the Court

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Decision last updated: 19 October 2018