Kelly v Davies

[2022] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kelly v Davies [2022] NSWLEC 1212

Hearing dates:

02 June 2022

Date of orders:

02 June 2022

Decision date:

02 June 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –- were the trees planted - do the trees form a hedge – are views severely obstructed – balancing of interests

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

s14A, 14B, 14E

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Johnson v Angus 190 LGERA 334; [2012] NSWLEC 192

Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152

Wisdom v Payn [2011] NSWLEC 1012

Category:

Principal judgment

Parties:

Mathew Kelly (Applicant)
Lloyd Davies (First Respondent)
Barbara Davies (Second Respondent)

Representation:

M Kelly (Self-represented) (Applicant)
J Sharp (Agent) (Respondent)

File Number(s):

2022/80700

Publication restriction:

No

Judgment

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

Background

1. Matthew Kelly, the applicant, has owned a property in Beacon Hill since 1992. He claims that since then, three trees in the adjacent neighbouring property to his north have grown and increasingly obstructed sunlight from the northern side of his dwelling.

2. The respondents, Lloyd and Barbara Davies, have owned their property for 47 years, since 1975. It is located within the Northern Beaches Local Government Area (LGA). A general Tree Preservation policy applies, and Northern Beaches Council are the Statutory Authority. Jonathan Sharp, the respondents’ son in law, has been appointed to act as the respondents’ Agent.

3. So as to re-gain sunlight to windows he claims are obstructed by neighbouring trees, Mr Kelly submitted an application with the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”).

4. The proposed orders are:

1. Remove the trees marked T1, T2, T3 on the respondents’ property as marked in the attached documentation to prevent the severe obstruction of sunlight to the windows of the dwelling situated on the applicant’s land.

Onsite hearing

5. The hearing took place onsite, with both Mr Kelly and Mr Sharp present. A copy of the respondents’ Agency application form, stamped and accepted by the Court, was included in the file.

6. The trees were inspected initially. Three distinctly different trees (the trees) were distributed across the rear of the respondents’ property, in a largely irregular pattern, relative to most hedges. They were not in a straight line, the spacing between the trees was uneven, and one of the three is much older than the other two.

7. The Court moved to the applicant’s dwelling, to assess view obstruction from nominated locations, and to take submissions.

Jurisdictional requirements

8. In Pt 2A matters under the Trees Act, 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].

9. The Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views, or, of sunlight to a window of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits that the trees provide.

Do the trees form a hedge?

10. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?

11. Section 14A(1) states:

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).

12. After my inspection and consideration of the three trees in site context, I am not satisfied that they are planted so as to form a hedge.

13. In his Tree Dispute Claim Details (Exhibit B), the applicant provided no answer to question 3(d), whether the trees were already in situ when he occupied the property, and in oral submissions, he confirmed only that if they were present when he occupied his property, they were much smaller and were not obstructing his sunlight. Mr Kelly noted that he did not know if they had been planted.

14. Mr Sharp, who was familiar with the respondents’ property, submitted that all three trees had been in situ when the respondents occupied their property in 1975, and he claimed that the previous owners of the respondents’ property who built the dwelling, said that one of the trees was already established when they had occupied the land.

15. Based on the arboricultural expertise I bring to the Court, I am satisfied that this is highly probable. The tree in question is in the centre of the three. It is an Angophora costata (Sydney Red Gum), the age of which I estimate to be greater than 100 years, possibly much older. Being locally endemic and having probably started its life in the 19^th or early 20^th century, it is likely to be a remnant of local native bushland, and probably self-sown.

16. In Johnson v Angus 190 LGERA 334; [2012] NSWLEC 192 (Johnson), at [38], Preston CJ notes;

“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.”

17. The other two trees appear as if they would have been planted, but Mr Kelly does not know, and Mr Sharp opined that the respondents had not planted them. The tree closest to the applicant’s property is a Melaleuca bracteata, which is indigenous to northern Australia, and thus most likely planted here, where it is positioned about eight metres from the Angophora. About three metres beyond the Angophora, further from the applicant’s property, is a Melaleuca quinquenervia, the growth of which appears heavily suppressed under the canopy of the Angophora. Also being indigenous to this area, it is not unlikely that this tree was self-sown, but it is less likely than the Angophora, as it would have been much more recent. Based on their size and form, I would expect these two Melaleuca’s to be less than 50 years old.

18. As a result, we have three trees, each with a distinctly different form and appearance, of different ages, and with no evidence provided by the applicant as to their origin or history. Though Mr Kelly considered the trees to be a hedge because they acted as a barrier to light penetration, this does not address the key requirement of the Trees Act to confirm that the trees “were planted so as to form a hedge”. Given that the onus is on the applicant to prove his case, this is a fundamental element that he must prove.

19. Relevant similarities arose in Johnson, where, at [39]-[43], His Honour says;

“[39] 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.

[40] 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.

[41] 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.

[42] 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.

[43] 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.”

20. Upon substituting the Angophora costata for the Turpentine in Johnson, an equivalent situation, as described in the final two sentences of [43] of Johnson, is found in this case. Even if the Angophora was to have been planted, it would have been planted more than 50 years before the other two trees were planted and hence the Angophora could not have been planted so as to form a hedge with them. If the Angophora 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 other two trees being planted to form a hedge in proximity to the Angophora.

21. Considering elements from [41] of Johnson, though these three trees are in the same botanical family, they appear entirely different in form, leaves and bark. When representations are made that only a few trees comprise a hedge, there is a distinct onus on the applicant to prove that the relationship between the trees satisfies the requirements of the Trees Act. Typically, this would involve trees of similar species and form, planted at the same time, relatively close together.

22. In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), at [44]-[46], Moore SC and Hewett AC assessed Mr Wisdom’s claim that a Bottlebrush tree was part of a hedge;

“44 Mr Hannaford submitted that it was appropriate for us to consider the fact that the Bottlebrush would be perceived to be part of one or both of these groups of trees and that that perception, from the Wisdoms' elevated deck, should be that which is taken into account rather than one that is based on a measurement focused assessment of location. Indeed, he put the proposition to us, as we understood it, that trees that were planted in a copse or a forest would be capable, as a group, of being regarded as a hedge for the purposes of the Act even if there was considerable depth to such a group of trees and no regularity or linear arrangement to the spacing or orientation of those plantings.

45 We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.

46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded.”

23. In this case there are similarities with Wisdom, in that Mr Kelly based his determination of the trees as a hedge only on their role blocking sunlight, absent of any of the relevant considerations detailed by the Commissioners in Wisdom. These trees are not in a straight line, no explanation is offered for the large, non-uniform spacing between the trees, and viewed from many other vantages, including from the respondents’ property, because of their distinct trunks and absence of low foliage, a reasonable person is unlikely to consider them to look like or form a hedge.

24. I am not satisfied that the three trees were planted so as to form a hedge, nor that they currently form a hedge. As a consequence, s 14A(1) is not satisfied, so I have no powers to make orders.

25. If, however, I was incorrect, and the trees were planted so as to form a hedge, the Court would next consider s 14B. This states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

14B Application to Court by affected land owner

(a) sunlight to a window of a dwelling situated on the applicant’s land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

26. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. Though Mr Sharp submitted that only one written request for pruning was provided, in 2020, and that the respondents considered this an insufficient and inadequate effort by the applicant to reach agreement effort, I am satisfied that the applicant has met, but only just met, the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and s 14E(1)(a) is thus engaged.

27. I summarised the explanation of Preston CJ in Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152, that the ‘reasonable effort’ required under the Trees Act is less demanding than under some jurisdictions.

28. Had the trees been planted so as to form a hedge, and s 14E(1)(a) was also engaged, the next step is to assess the severity of the obstruction of view from the applicant’s dwelling, or sunlight to a window of the applicant’s dwelling, as a consequence of any or all of the trees in the hedge.

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

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

…

(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.

30. W1 is the window of the applicant’s living area, while W2 – W4 were bedrooms. W1 is closest to the trees, and, of the four nominated windows, is the most impacted by obstruction of sunlight by the trees. Regardless of this, I was not satisfied that the obstruction of sunlight to this window is as high as severe, as the tree canopies were relatively open, particularly the Angophora, and dappled light was likely to penetrate through to some or all of this window, for most of the day, and particularly so in the afternoon.

31. As a result, s 14E(2)(a)(i) is also not engaged. Though not mandated by the Court, the applicant did not submit shadow diagrams that may have supported his position.

Conclusions

32. I am not satisfied that the Angophora tree has been planted, I have not been persuaded that the Melaleuca quinquenervia was planted, and no evidence was provided or inferred that the trees were planted so as to form a hedge.

33. Even if the trees were planted, I estimate that the Angophora is at least 50 years older than either of the other two trees, and alone, in their absence, the Angophora could not be planted so as to form a hedge. They present as amenity trees and are quite different in appearance and form. As a result, the requirements of s 14A(1)(a) are not satisfied.

34. Even if I was wrong and the trees were planted so as to form a hedge, because their canopies do not form a dense screen, but allow dappled, filtered light to penetrate, I am not satisfied that the obstruction of sunlight to a window, as a result of the trees, should be considered to be severe. As a result, s 14E(2)(a)(i) is not engaged.

35. With s 14A(1)(a) not satisfied, there is no requirement to consider the discretionary factors is s14F.

Orders

36. As a result, the orders of the Court are:

1. The application is refused.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 10 June 2022