Johnson v Angus

[2012] NSWLEC 192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Johnson v Angus [2012] NSWLEC 192
Hearing dates:	10 August 2012
Decision date:	17 August 2012
Jurisdiction:	Class 2
Before:	Preston CJ
Decision:	The Court orders that the summons is dismissed.
Catchwords:	APPEAL - s 56A(1) appeal against commissioner's decision - application under Part 2A of Trees (Disputes Between Neighbours) Act 2006 to remove and prune trees claimed to form a hedge that severely obstructs views - Part 2A only applies to trees satisfying s 14A(1)(a) that are planted so as to form a hedge - commissioner found a turpentine tree was neither planted nor planted so as to form a hedge - appeal on questions of law - meaning of words and phrases in s 14A(1) - 'planted', 'trees that are planted' and 'so as to form a hedge' - commissioner did not err in interpretation of words and phrases - commissioner's inference of fact that tree more likely self-sown not planted - not established that no evidence for inference - not established that commissioner erred in finding no jurisdiction to make orders concerning the tree
Legislation Cited:	Land and Environment Court Act 1979 s 56A Trees (Disputes Between Neighbours) Act 2006 s 14A
Cases Cited:	Coles v Woollahra Municipal Council (1986) 59 LGRA 133 Johnson v Angus [2012] NSWLEC 1207 Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Category:	Principal judgment
Parties:	Anthony Walter Johnson (First Appellant) Pauline Margaret Neville (Second Appellant) Lynne Patricia Parsons (Third Appellant) Kenneth Douglas Angus (First Respondent) Jennifer Bickley Angus (Second Respondent)
Representation:	Ms A Pearman (Barrister) (Appellants) No appearance for the Respondents Bartier Perry (Appellants) Addisons (Respondents)
File Number(s):	20769 of 2012

Judgment

Nature of case and conclusion

1. The Johnson family have owned a house at 132 Hudson Parade, Clareville, for 50 years. The house has views to the north towards the waterway of Pittwater over the neighbouring property, 130 Hudson Parade, owned by Mr and Mrs Angus.

1. Over the years, trees on the Angus property have grown and reduced the water views from the Johnsons' house.

1. Three members of the Johnson family applied to the Land and Environment Court for an order for the removal of three trees (a Turpentine (T1) and two Bangalow palms (T11 and T14)) and the periodic pruning of fronds of other trees (Bangalow palms and a Kentia palm) to restore and maintain views from the Johnsons' house. The applicants were Mr Johnson, Ms Neville and Ms Parsons representing the Estate of the Late Margaret Johnson. For ease of reference I will refer to them as the Johnsons.

1. The Johnsons' application was under s 14B of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act'). This section allows an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (which was not claimed in this case) or any view from a dwelling situated on the land (which was claimed in this case) if the obstruction occurs as a consequence of trees to which Part 2A of the Trees Act applies being situated on adjoining land. The trees to which Part 2A applies are defined in s 14A of the Trees Act. Of relevance to this case is s 14A(1) which states that:

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).

1. The Johnsons contended that the trees they sought to have removed or pruned were part of a group of trees that satisfied the criteria in s 14A(1) of the Trees Act.

1. The Johnsons' application was heard by a commissioner of the Court at an on-site hearing. The Commissioner later delivered judgment, partly upholding the Johnsons' application by ordering the removal of two Bangalow palms (T11 and the larger stem of T14) and the periodic pruning of fronds of a Kentia palm (T4) and numerous Bangalow palms (T5-T9, T12-T20 and the remaining stems of T14), but not the removal of the Turpentine T1: see Johnson v Angus [2012] NSWLEC 1207 at [46]. The Commissioner found that the palms that he ordered to be removed or pruned: were more than 2.5m in height (paras 6 and 33); had been planted during the 1990s (paras 20 and 33); had been planted in a roughly linear fashion along the Angus' side of the property boundary (para 33); had crowns that generally overlapped and had a similar appearance (para 33); and had a sense of continuity along the row (para 33). The Commissioner found, '[t]he 19 palms, therefore, are planted so as to form a hedge and, according to s 14A, Part 2A applies to them' (para 33).

1. The Commissioner, however, found that the Turpentine T1 was not a tree to which Part 2A of the Trees Act applied because he found that it was neither 'planted' (paras 23, 32, 41 and 44) nor formed part of a hedge with the palms (paras 27-31, 32, 41, 43, 44), so as to satisfy the jurisdictional test in s 14A(1) of the Trees Act.

1. The Johnsons have appealed under s 56A(1) of the Land and Environment Court Act 1979 against the Commissioner's decision on three questions of law. The first question of law is said to be that the Commissioner erred in his interpretation of s 14A(1) of the Trees Act and its application to the Turpentine. The second question of law is claimed to be that the Commissioner made a finding of fact (that the Turpentine was self-sown, not planted) not reasonably open on the evidence. The third question of law is really consequential on the first two and is that the Commissioner erred in finding that he had no jurisdiction in respect of the Turpentine.

1. Mr and Mrs Angus have indicated that they do not wish to give evidence, make submissions or attend the hearing of the s 56A appeal by the Johnsons.

1. I find that the Johnsons have not established that the Commissioner erred on a question of law in any of the three ways claimed. The appeal should be dismissed. As there has been no appearance by Mr and Mrs Angus, and they have not made any application for an order for costs, there should be no order as to costs.

The Commissioner's interpretation of s 14A(1) of the Trees Act

1. The Johnsons contend that the Commissioner erred in interpreting s 14A(1)(a) of the Trees Act in two ways: first, concerning the word 'planted' and secondly, concerning the word 'hedge' and the phrase 'so as to form a hedge'.

1. In relation to the word 'planted', the Commissioner contrasted a tree that was planted by human agency, with a self-sown tree growing from a naturally falling seed. The Commissioner construed the word 'planted' as requiring the former and excluding the latter (at paras 22, 23 and 41). The Commissioner made a finding of fact that he was not satisfied on the evidence that the Turpentine had been planted (at para 23).

1. 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'.

1. 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.

1. I reject the Johnsons' submission as to the meaning of the word 'planted' for two reasons. First, the word the legislature has used in s 14A(1)(a) is 'planted' and not 'situated' or 'located'. The choice of the word 'planted' must be seen to be deliberate. The word 'situated' is used abundantly elsewhere in the Trees Act and in each instance the word refers to the location of a tree on land: see, as examples, in Part 1 of the Trees Act, s 4(1), (2), (3) and (4); in Part 2, ss 7, 10(1) and 12; in Part 2A, ss 14A(2), 14B, 14C(1), 14D(1), 14E(1), 14(F) and 14(H); and in Part 3, ss 16(1) and (1A) and 17(1). Indeed, the legislature uses the word 'situated' in the same section, s 14A, where it also uses the word 'planted'. Section 14A(2) refers to 'trees situated on the following land', using the word 'situated' to refer to the location of the trees on the land.

1. Notwithstanding this use of the word 'situated' in s 14A(2) and in many other sections of the Trees Act, the legislature chose to use a different word, 'planted', in s 14A(1). Indeed, the legislature has used the word 'planted' only once in the whole of the Trees Act and that is in s 14A(1)(a). To construe the word 'planted' as meaning 'situated', when the legislature chose deliberately not to use the word 'situated' but instead to use the different word of 'planted', would be to defeat the legislative intention.

1. Rather, the word 'planted' in s 14A(1)(a) bears a meaning closer to meaning no 14 of 'plant' in the Macquarie Dictionary of 'to put or set in the ground for growth, as seeds, young trees'. In s 14A(1)(a), the trees can be planted not only in the ground but also otherwise, such as in pots. Nevertheless, trees that are planted are trees, in the form of seeds, seedlings or young trees, that are put or set in the ground or otherwise for growth. This meaning of 'planted' requires human agency to put or set in the ground or otherwise the seed, seedling or young tree for growth. A self-sown tree, that is a tree that grows from a seed that is self-sown without human agency, has not been planted.

1. Secondly, a grammatical analysis of the sentence in s 14A(1) of the Trees Act corroborates the meaning of the word 'planted' in s 14A(1)(a) as being put or set in the ground by human agency.

1. Section 14A(1) describes the type of trees to which Part 2A applies. The sentence states that Part 2A only applies to two or more trees that meet both of the criteria in paras (a) and (b). The group of words beginning with the word 'trees' in s 14A(1) through to the end of the sentence is a long, noun phrase. The long phrase does the work of a noun in the sentence. The noun phrase contains a number of shorter phrases, being the description of the noun 'trees'. This case concerns the phrase in para (a).

1. The first part of the phrase is 'trees that are planted'. This is expressed in the agentless, passive voice. The subject of the phrase (the trees) is the recipient of the action of planting but the phrase is silent as to the agent performing the action of planting.

1. There are two verbs in the first part of the phrase expressed in the passive voice: the auxiliary verb 'to be' in the form of the present indicative plural (are) and the main, transitive verb 'to plant' in its past participle form (planted).

1. The first part of the phrase is expressed in the simple present tense (trees that are planted) rather than the simple past tense (trees that were planted) or the past perfect tense (trees that had been planted). On first impression, the use of the simple present tense might seem curious given that the action of planting a tree occurs in a finite and constrained time period; planting cannot be continuous. Once the action of planting the trees is completed, it could be said that the trees were planted or the trees had been planted. If either the simple past or past perfect tense had been used in s 14A(1)(a), the consideration would have been restricted to the past action of planting. However, the use of the simple present tense in s 14A(1)(a) expands the consideration so as to include not only the past action of planting the trees but also the current character of the trees as being planted. The action of planting has been completed but that action imparts the character of being planted to the tree and that character continues to the present and into the future for the life of the tree. That character distinguishes trees that are planted from trees that are self-sown.

1. The choice of the simple present tense in this first part of the phrase becomes even clearer when the first part is considered in the context of the whole phrase.

1. The phrase 'trees that are planted' is followed by the adverb clause of purpose 'so as to form a hedge'. The subordinating conjunction 'so as' indicates a relationship of purpose between the phrases 'trees that are planted' and 'to form a hedge'. The idiom 'so as to' means 'in order to' or 'with the result or purpose of' (Macquarie Dictionary). The idiom 'so as to' is always followed by the infinitive of a verb. In this case, the idiom is followed by the infinitive of the verb 'form'. The meanings of the transitive verb 'to form' include 'to make or produce; to serve to make up, or compose; serve for, or constitute' and 'to place in order; arrange; organise' (Macquarie Dictionary).

1. In s 14A(1)(a), the goal of the verb 'to form' is 'a hedge'. Hence, the adverb clause of purpose 'so as to form a hedge' means 'with the result or purpose of making or producing a hedge'. Section 14A(1)(a) requires that this be the purpose that the verb 'planted' address.

1. A tree that is self-sown can never satisfy the purpose stated in the adverb clause of purpose 'so as to form a hedge'. The action of being sown by an agency other than humans, such as by the wind or birds, is purposeless. Only the action of putting or setting a tree in the ground or otherwise by human agency is capable of satisfying the purpose in the adverb clause of purpose 'so as to form a hedge'.

1. I return to my earlier observation that the phrase 'trees that are planted' is in the simple present tense. The simple present tense can be used to indicate that a fact or state of affairs was true before, is true now and will be true in the future; that an action happens all the time or habitually, in the past, present or future; or to make generalisations about people or things.

1. In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.

1. This requirement for the state of affairs of the trees being planted so as to form a hedge to exist at the time of planting and to continue to the present, is a product of using the simple present tense and would not result if the simple past tense or the past perfect tense had been used. Expressing the phrase in either the simple past tense (trees that were planted so as to form a hedge) or in the past perfect tense (trees that had been planted so as to form a hedge) would have required only an examination at the time of planting of whether the trees were or had been planted so as to form a hedge, and not whether that state of affairs continues to the present.

1. 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.

1. 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.

1. The second error of interpretation the Johnsons submit the Commissioner made involves the word 'hedge' and the concept of 'so as to form a hedge'.

1. The Commissioner found that the Turpentine, even if it could be found to have been planted, did not form a hedge. The Commissioner was of the view that the Turpentine was separate, and distinctly so, from the palms that he found did form a hedge, in several ways. First, the Turpentine was distinctly older than the palms, the Turpentine being perhaps 60 or even 70 years old while the palms were perhaps 15 or 20 years old (para 28).

1. Secondly, the Turpentine appeared as a distinctly individual tree in the landscape. The Commissioner held that:

[i]t is considerably larger than the nearby palms. It has a dense crown from low on its stem and leaves like a gum tree. The palms, on the other hand, have several long fronds at the tops of bare stems. The palms, although there are two species, appear relatively uniform along the planting. The Turpentine's appearance makes it a separate landscape feature, and not part of this otherwise homogenous group of plants (para 29).

1. Thirdly, although the Commissioner accepted that there was no requirement for all trees in a hedge to be planted at the same time, in the present situation, he found:

the Turpentine appeared first, as a solitary tree, and a group of very different trees was then planted along the boundary up to this tree. It was certainly not a hedge when it grew here and has not become part of one. Its age, size, form and appearance all make it a separate tree, and distinctly so (para 30).

1. The Johnsons submit that the Commissioner erred in concluding that a hedge cannot include a separate or distinctively individual tree within a group of trees. They submit that 'the appropriate question to be determined as to whether any group of trees is planted so as to form a hedge under s 14A is not age, size, form, appearance or the uniformity of remaining elements', as determined by the Commissioner 'but simply whether the two or more trees are sufficiently close and tall enough' (para 47 of the appellants' outline of submissions). They submit that, in this case, the Turpentine and palms were sufficiently close and tall enough to be a hedge.

1. I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.

1. If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. For these reasons, I reject the Johnsons' submission that the Commissioner erred in law in his construction and application of s 14A(1)(a) of the Trees Act to the Turpentine.

The Commissioner's factual finding that the tree was not planted

1. The second question of law raised by the Johnsons was that the Commissioner made a factual 'finding not reasonably open on the evidence'. This finding was that the Turpentine was more likely than not self-sown rather than planted (paras 22 and 23).

1. At the outset, I should note that the Johnsons' submission does not raise a question of law. Section 56A restricts an appeal against a commissioner's decision to a question of law. A wrong finding or inference of fact on the evidence is an error of fact, not law. Even if the finding or inference of fact is one no reasonable commissioner could have come to on the evidence, it is still an error of fact and does not raise a question of law: Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46 at 49; Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 141. An error of law only arises if a finding of fact is made where there is no evidence at all capable of justifying the finding: Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [76] and cases therein cited.

1. This stringent test is not satisfied in this case. The Johnsons have the onus of proof to establish that the Turpentine had been planted and hence was a tree to which Part 2A of the Trees Act applied. There was no direct evidence demonstrating that the Turpentine had been planted (para 23 of the judgment). The Johnsons adduced evidence from an arborist who provided an aerial photograph taken in 1961. The arborist gave evidence as to the inference he drew from that photograph. The Commissioner recorded that the arborist stated in oral evidence that the tree could be seen as a shadow on the 1961 aerial photograph and that it was likely to have been planted or self-seeded during the 1940s (para 22). The Commissioner, however, drew a different inference from the photograph, as he was entitled to do. He observed that some clearing of the Angus' property had occurred but there was extensive remnant vegetation across the broader landscape. This suggested to the Commissioner that it was more feasible that the Turpentine grew from a naturally falling seed (para 22). The Commissioner expressed 'more than a little doubt' about the tree being planted (para 23).

1. The Commissioner's inference of fact was available on the evidence. Even if he were to be wrong, that would be an error of fact and not of law.

1. The Johnsons have not established that the Commissioner's decision on the Turpentine involved a question of law.

The Commissioner's finding of no jurisdiction

1. The Johnsons' third question of law, that the Commissioner failed to exercise jurisdiction in respect of the Turpentine, was consequential on their establishing the first two questions of law. As I have held that neither of the first two questions of law have been established, the third also fails.

Conclusion and orders

1. The Johnsons' appeal is therefore unsuccessful and the summons should be dismissed. There should be no order as to costs.

1. The Court orders that the summons is dismissed.

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Decision last updated: 19 August 2012