Lewis v Lorden

[2020] NSWLEC 1416

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lewis v Lorden [2020] NSWLEC 1416

Hearing dates:

30 July 2020

Date of orders:

30 July 2020

Decision date:

30 July 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

Refer to orders at [34]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – severe obstruction of views

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Robson v Leischke [2008] NSWLEC 152

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

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Anne Lewis (First Applicant)
Alaric Barnes (Second Applicant)
Kate Lorden (First Respondent)
Greg Thomson (Second Respondent)

Representation:

Counsel:
A Lewis (Litigant in person) (First Applicant)
A Barnes (Litigant in person) (Second Applicant)
R Green (Solicitor) (Respondent)

Solicitor:
Robert Green Legal (Respondent)

File Number(s):

2020/64062

Publication restriction:

No

Judgment

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

1. COMMISSIONER: Ms Lewis and Mr Barnes submitted an application, pursuant to s 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), claiming that a hedge in their adjacent neighbour’s property severely restricts views. The applicants’ eastern side boundary adjoins the rear boundary of Ms Lorden and Mr Thomsons’, the respondents, land.

2. Ms Lewis and Mr Barnes occupied their property in East Balmain in March 2010. In about 2013, Ms Lorden and Mr Thomson planted a row of seven Pyrus calleryana ‘Capital’ (Ornamental Pears) (the trees). Since then, the trees have grown strongly, by 2018 they had reached a height of around seven metres, and had begun to block Ms Lewis and Mr Barnes’ views of the Sydney Harbour Bridge, from an upstairs bedroom. Subsequently, the trees were pruned by the respondents, so as to reduce their height and thus mitigate the view obstruction, after which they had regrown, such that they are currently about 6.5 metres tall.

The onsite hearing

3. The hearing commenced with an inspection of the trees in Ms Lorden and Mr Thomson’s rear yard. The trees are currently deciduous, but when in leaf, they have dense foliage. In response to the previous pruning to reduce height, their regrowth is characterised by vertical epicormic shoots which rapidly re-obstructed their views. The trees are planted close together in a row about twelve metres long, parallel to and within about half a metre of the common boundary. This boundary extends from east to west.

4. From Ms Lewis and Mr Barnes’ upstairs spare bedroom V1 the trees block views towards the east, including prized views of the Sydney Harbour Bridge. Expectations to regain the view which, at best, provides visual access to only a narrow sliver of the Sydney Harbour Bridge from a ground floor kitchen window (V2), was de-prioritised by the applicants during the hearing. The view from V2 is restricted primarily by the presence of a large Tuckaroo tree (OV1), growing in a neighbouring property.

5. The Court assembled in the respondent’s rear yard for submissions. Ms Lewis and Mr Barnes were litigants in person, while Ms Lorden and Mr Thomson were represented by Mr Robert Green, Solicitor.

The applicant’s case

6. Ms Lewis and Mr Barnes sought orders for the trees to be removed, and replaced with a structure (comprising a screen or replacement trees) that will not block their view from either floor of their house, or, alternatively, pruned, and subsequently maintained at a height which results in no obstruction of any part of the views potentially available from their house. They also claimed that either option should be at the respondents’ expense. The applicants submitted that they simply want the views back that they had at the time of purchase in 2010.

The respondent’s position

7. Ms Lorden and Mr Thomson resist removal and replacement of the trees, the installation of a screening structure, or pruning height from the trees which would compromise the privacy that the trees provide for them.

8. Additionally, the respondents submitted that other trees and houses, located in the properties of nearby neighbours, would also block water and Harbour Bridge views in the absence of the existing hedge, nullifying or reducing benefit from pruning height from the Ornamental Pears.

Jurisdictional requirements

9. In Pt 2A matters, 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].

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 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. Ms Lorden and Mr Thomson noted that they planted the trees about seven years ago, and the trees currently reach a height of about six and a half metres above ground level. Therefore, s 14A(1) is satisfied.

13. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

14B Application to Court by affected land owner

…

(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.

14. The applicants have also satisfied the requirements under s 14C with respect to providing at least 21 days’ notice of their application for order to be given to owners of affected land.

15. As is not uncommon with many tree disputes, negotiations between the parties have been protracted and at times unpleasant. Nonetheless, Ms Lewis and Mr Barnes have satisfied, albeit barely, the requirements under s 14E(1)(a) to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. They sent multiple texts and emails to the respondents requesting pruning of the trees, but made no attempt to engage the respondents in a mediation process conducted under the guidance of a Community Justice Centre, as is recommended by the Court.

16. In Robson v Leischke [2008] NSWLEC 152, at [194]–[195], Preston CJ notes:

“194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.

195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

17. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedge.

18. Section 14E(2)(a)(ii) 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:

…

(ii) are severely obstructing a view from a dwelling situated on the applicant's land.

19. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).

20. The first three steps of the four step process in Tenacity are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected – water views are valued more highly than land views, and iconic views such as the Opera House, the Harbour Bridge or North Head, are particularly valued, whole views are valued more highly than partial views, and the interface between land and water is valued.

21. The second step considers the part of the property from where the views are obtained – views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic.

22. The third step considers the extent of the impact for the whole of the property and not just the view that is affected – the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. In this respect, at [28] of Tenacity, Roseth SC cites as an example “it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House”.

23. Position V1, looking towards the east, provides the applicants with a narrow partial water view. This view does, however, include a significant proportion of the Harbour Bridge.

24. Once it re-foliates in the spring, the presence of the respondents’ hedge would partially obstruct this view from V1, and given its anticipated rapid growth, the extent of this obstruction is likely to also increase rapidly.

25. Ms Lorden and Mr Thomson submitted that other trees and buildings in neighbouring properties in the mid distance would also block these bridge and water views, but the primary obstruction, given its likely rapid regrowth, is provided by the hedge.

26. The respondents’ contention that a privacy screen should have been erected in the distant past because it was a condition of the Development Application (DA) approval for the addition of the upper storey of the applicants’ dwelling is not relevant to this analysis, as this long predated the applicants’ occupation of their property.

27. The views coveted by Ms Lewis and Mr Barnes is gained largely across the rear corner of their property, though it passes across the common boundaries to a minor extent. Most other aspects of the Tenacity principle providing guidance on view sharing are met in this situation.

28. Given the Sydney Harbour Bridge must be considered iconic, regardless that the applicants view of it is gained from a bedroom window, through a narrow passage between buildings and other neighbouring trees, I am satisfied that obstruction of this view by the hedge, which has happened in the past, and is likely to recur in the near future, should be considered severe.

29. Therefore, though the Court sets a high bar when considering the word 'severe', I am satisfied that the hedge is severely obstructing a view from a dwelling situated on the applicant's land, and thus s 14E(2)(a)(ii) of the Act is engaged.

30. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

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

…

(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.

31. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

1. The hedge is located in the respondent’s property, parallel and close to the common boundary.

2. The trees were planted during the period of occupation by the applicant.

3. The trees have grown to their current height of about 6.5 metres since that time.

4. The trees are likely protected by Inner West Council’s Tree Management controls under the Leichhardt Development Control Plan 2013, though permission may not be required to prune the hedge to the extent required to remedy the view obstruction.

5. The condition of consent for screening of the respondents’ property, attached to the DA approval related to the second storey addition to the applicants’ house, long pre-dated the applicants’ occupation, and is thus not deemed relevant to this analysis.

6. The trees do not have any historical, cultural, social or scientific value that is worthy of consideration.

7. The hedge is likely to make only a minor contribution to biodiversity, as a potential source of food and perhaps habitat for native fauna.

8. The trees provide some contribution to the natural landscape and scenic value of the land on which they are situated.

9. The trees are not of such a size, or in a sufficiently prominent location, to make a contribution to public amenity.

10. The trees may provide benefit with absorption of water, particularly after periods of heavy rainfall.

11. This species can normally be pruned relatively often to maintain height without unduly affecting their health or function. Such pruning will likely result in rapid regrowth of epicormic suckers, and will thus need to be repeated regularly to prevent ongoing obstruction of views.

12. Being on the upper level, the applicants’ bedroom window (V1) overlooks the respondent’s rear yard, and the hedge makes a significant contribution to providing privacy for the respondent. It also adds to garden design and landscaping value of the garden.

With respect to this, and noting the guidance provided in the second step of Tenacity, any views to be gained and maintained for the applicants will be based on a standing, rather than a sitting position.

13. Other trees and buildings also restrict the view, but the hedge is the primary vector.

14. The respondents have taken action in the past to rectify the obstruction.

(o/p) The hedge is deciduous.

15. The obstructed view includes a small area of Sydney harbour, and the Sydney Harbour Bridge. The height, density, and relatively close proximity of the hedge to V1 results in these views having been significantly restricted in the past, and this view obstruction is likely to redevelop rapidly in the pending season, should the height of the hedge not be managed.

16. The views are obstructed from the applicant’s upper level bedroom.

Conclusion

32. Pruning and ongoing maintenance of the height of the hedge will be ordered so that the views are regained for the applicant, while retaining most of the hedge’s benefits of privacy and landscape amenity for Ms Lorden and Mr Thomson. This will result in little loss of amenity for the respondents, and significant benefit for the applicant.

33. When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention here.

Orders

34. The orders of the Court are:

1. Prune the hedge, comprising T1 – T7, within 45 days, to a height lower than AHD31, OR to the height of a horizontal line equivalent to the middle horizontal crossbeam in the window of the spare bedroom (V1), whichever is lower.

2. Maintain the height of the hedge so that the trees never exceed a height above AHD31, OR to the height of a horizontal line equivalent to the middle horizontal crossbeam in the window of the spare bedroom (V1), whichever is lower.

3. The cost of any and all pruning required to satisfy Orders 1 and 2 shall be borne by the respondent.

4. Should it be required, the applicants shall allow access to their property for this pruning and/or clean-up of refuse, upon receipt of email correspondence providing the date and approximate start time for the works with at least 48 hours’ notice.

5. Should such access be required, the works must be completed by an AQF Level 3 Arborist, with all appropriate insurances.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Amendments

08 September 2020 - Amended jurisdiction to Class 2

Decision last updated: 08 September 2020