Matthews v Holford

[2022] NSWLEC 1407

Land and Environment Court

New South Wales

Medium Neutral Citation:

Matthews v Holford [2022] NSWLEC 1407

Hearing dates:

29 March 2022 and 31 March 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The Pt 2 application is refused.

(2) The Pt 2A application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – Pt 2A application – neighbouring hedge – obstruction of views – whether the trees are planted so as to form a hedge – whether the obstruction is severe – privacy

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10; Pt 2A, ss 14A, 14B, 14E

Cases Cited:

Freeman v Dillon [2012] NSWLEC 1057

Haindl v Daisch [2011] NSWLEC 1145

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

Wisdom v Payn [2011] NSWLEC 1012

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Martin Matthews (Applicant)
Graham Holford (First Respondent)
Margaret Holford (Second Respondent)

Representation:

Counsel:
M Matthews (Self-represented) (Applicant)
G Holford (Self-represented) (First Respondent)
M Holford (Self-represented) (Second Respondent)

File Number(s):

2021/339069

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: Martin Matthews (the Applicant) has applied to the Court pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for his neighbours Graham Holford and Margaret Holford (the Respondents) to prune trees on their property.

2. Under Pt 2 of the Trees Act, Mr Matthews seeks orders for the Holfords to prune trees that might cause damage or injury. Under Pt 2A, he seeks orders for the Holfords to prune and maintain at a lower height several trees that obstruct views from his dwelling.

The hearing

3. The hearing in these proceedings took place onsite. Parties were self-represented. The Court visited both properties to view the trees, the views and any view obstruction, and the surrounding environment.

4. The applicant provided recent and historical photographs of views from his property. The respondents provided a report by an arborist and copies of letters written to the applicant. I observed the trees and also rely on my own arboricultural experience and expertise in making this decision.

The Applicant made reasonable effort

5. Both Pt 2 (at s 10(1)) and Pt 2A (at s 14E(1)) of the Trees Act require the Court to be satisfied, before making any orders, that the Applicant has made a reasonable effort to reach agreement with the Respondents before the Court can make orders. Mr Matthews has discussed the trees with the Holfords and has written to them about the trees. The Holfords have agreed to some pruning, but disagree as to the extent of pruning and who should pay. I am satisfied that Mr Matthews’ efforts were reasonable.

Trees in the application

6. Mr Matthews’ application includes 12 trees. Trees 1–10 are Strelitzia nicolai (Giant Bird of Paradise) near the back of the Holford’s dwelling and close to the common boundary alongside Mr Matthews’ back yard. The strelitzia are up to 10 metres tall. Closer to Mr Matthews’ dwelling are trees 11 and 12, a cypress and a paperbark respectively. They too are around 10 metres tall.

The Pt 2 application

7. Under Pt 2 of the Trees Act, at s 10(2), the Court must be satisfied, before making any orders, that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or injury to any person.

Trees 1–10

8. The strelitzia, referred to as trees 1–10, form a clump of approximately ten stems, some older and up to 10 metres tall, others younger and shorter. As happens with the species, older stems slowly decline and collapse, to be replaced by newer stems. Foliage grows along the stems but is concentrated at their ends. Although a few of the stems are declining in health, the clump as a whole is healthy and contributes to the Holfords’ amenity and privacy.

9. The older strelitzia stems that are declining are gradually sagging groundward, but within the Holfords’ property. No stem appears likely to fall onto the boundary fence or into Mr Matthews’ garden in the near future. As per this Court’s principle in Yang v Scerri [2007] NSWLEC 592 at [12]–[14], I regard ‘the near future’ to be a period of approximately 12 months from the present. Mr Matthews referred to taller stems moving significantly during strong winds. This is to be expected and does not necessarily indicate a likelihood for failure. Jason Paxton, the arborist who prepared a report for the respondents, found a very low risk of the strelitzia causing damage or injury.

10. I cannot be satisfied that any one of trees 1–10 is likely to cause damage to Mr Matthews’ property, or injury to a person, so no orders will be made on this element of the application.

Tree 11

11. Tree 11, a cypress, grows on the Holfords’ property near the common boundary shared by the parties, a short distance from Mr Matthews’ dwelling. It is approximately 10 metres tall; some branches overhang the boundary, extending towards Mr Matthews’ dwelling. Mr Matthews is concerned about the risk of damage to his property, particularly the risk of fire spreading to his dwelling via the tree.

12. At the time of the hearing, the cypress appeared healthy and structurally sound, without any major defects that could be observed from a ground-based inspection. The likelihood of branches falling onto Mr Matthews’ property is low. No evidence presented to the Court would satisfy me that the tree is likely to contribute to fire damage to Mr Matthews’ dwelling in the near future. Furthermore, damage caused by fire itself should not be confused with damage caused by a tree: see Freeman v Dillon [2012] NSWLEC 1057 at [84]–[86]. I also note here that Mr Matthews’ property is not within a 10/50 vegetation clearing entitlement area.

13. I am not satisfied that the cypress is likely to damage Mr Matthew’s property within the near future, nor that it is likely to injure anyone. No orders can be made on this element of the application. Should he wish to do so, Mr Matthews is able to prune up to 10% of the tree’s canopy, where it overhangs his property, once every 12 months without requiring Northern Beaches Council’s consent.

Tree 12

14. Tree 12, one of three paperbarks a short distance south of tree 11, is also close to the common boundary. It too has branches overhanging the boundary and extending towards Mr Matthews’ dwelling; some branches also overhang a service wire. Mr Matthews submitted that the tree is likely to damage his property; he said branches might fall onto the service wires.

15. The paperbark is approximately 10 metres tall, healthy and structurally sound, without major defects observed from a ground-based inspection. Nothing about the tree’s form and structure indicated to me that branch failure is likely within the near future. I am not satisfied that the tree is likely to cause damage to Mr Matthews’ property, or injury to a person, so I cannot make orders on this element of the application. As with the cypress, Mr Matthews could prune up to 10% of the tree’s canopy where it overhangs his property once every 12 months if he wishes.

No orders to be made for the Pt 2 application

16. As a result of the above, I am not satisfied that any of trees 1–12 enlivens the Court’s jurisdiction under Pt 2 of the Trees Act, so Mr Matthews’ Pt 2 application is refused.

The Pt 2A application

17. In his Pt 2A application, Mr Matthews claims that the clump of strelitzia, made up of 10 main stems (trees 1–10), forms a hedge. Foliage on the taller stems, he says, obstructs views from his dwelling. After observing the strelitzia from within the Holfords’ property, the Court observed the view from Mr Matthews’ dwelling, and the extent to which the strelitzia obstructs the view.

Trees 1–10 do not form a hedge

18. Part 2A of the Trees Act provides a limited jurisdiction for those who find neighbouring trees obstruct their sunlight or views. At s 14A, Pt 2A’s jurisdiction is limited to certain trees:

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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

19. To my mind, the 10 strelitzia stems form a clump, not a hedge. It may be that only one plant was placed here at the time of planting many years ago. The stems do not form a linear pattern along the boundary, as might be expected of a hedge. As Senior Commissioner Moore (as his Honour then was) and Commissioner Hewett found in Wisdom v Payn [2011] NSWLEC 1012 at [45]:

“…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.”

20. I don’t accept that the strelitzia would be perceived to be a hedge by a visitor to these properties. The strelitzia planted here are not typically used for hedging, as they do not respond well to height reduction. To maintain this clump at a lower height, the taller stems would need to be entirely removed, rather than simply reduced as per the orders sought by Mr Matthews. Such pruning or maintenance does not fit the common meaning of ‘hedging’.

21. Because I find that trees 1–10 are not planted so as to form a hedge, it follows that Pt 2A does not apply to these trees and the Court has no jurisdiction to make orders under this Part.

The view obstruction is not severe

22. Should I be wrong in finding that the strelitzia does not form a hedge, I also assessed the view obstruction. Views from the rear of both levels of Mr Matthews’ dwelling take in a broad outlook to the north that includes bushland, headlands, some of Pittwater, and the sky above. Mr Matthews submitted that the water view is the most valued part of his view. I accept this to be true. In Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”), Roseth SC identified several view elements likely to be of value. While the water view might not rate as iconic, according to Tenacity’s examples, it is certainly valuable. Mr Matthews provided photographs demonstrating that the water view was available when he came to the property in 2019. However, taken in context of the whole view that is available from Mr Matthews’ dwelling, as per the Commissioners’ approach at [26] in Haindl v Daisch [2011] NSWLEC 1145, I find the view obstruction is not severe. The historic photographs provided by Mr Matthews focus on that one small element of the view – the water – but the water view was only a small part of the overall view from the rear deck. The photograph below, which I took during the onsite hearing, shows that view. The tall clump of strelitzia can be seen near the rear corner of the Holfords’ neighbouring dwelling. I accept that part of the view – indeed a valued part of the view – is obstructed by the strelitzia. However the Court has set a relatively high bar for finding a severe view obstruction. Using the qualitative terms from Tenacity, I find the obstruction is moderate rather than severe.

23. The strelitzia does not form a hedge. It obstructs Mr Matthews’ view, but not severely so. Therefore the Court cannot make orders. Mr Matthews’ Pt 2A application is refused.

24. In my experience, issues arising in neighbourhood tree disputes are rarely black-and-white. Prior to Mr Matthews’ application to the Court, the Holfords extended a written offer to Mr Matthews in which he could prune trees at his expense. They suggested they might rely on the written offer to claim costs, should Mr Matthews not accept the offer. While the offer seemed reasonable to the Holfords, Mr Matthews apparently thought it unreasonable that he should have to pay to restore a view he had lost. Mr Matthews could not picture the many examples of view obstruction that the Court has considered, so could not compare the degree of obstruction here with others found to be moderate or severe. It is perhaps reasonable for Mr Matthews to want his original view maintained. The Court has not found it would be unreasonable to prune the strelitzia, only that the strelitzia does not form a hedge nor does it severely obstruct a view. In fact, the Holfords could maintain their privacy and other benefits of the strelitzia while pruning in such a way to restore their neighbour’s view and thus maintain good neighbourly relations, but that is not a matter for the Court in these proceedings.

Orders

25. As a result of the foregoing, the Court orders that:

1. The Pt 2 application is refused.

2. The Pt 2A application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 29 July 2022