McDonald v Sheehan

[2022] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:

McDonald v Sheehan [2022] NSWLEC 1159

Hearing dates:

23 March 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – impacts of pruning – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

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

Texts Cited:

AS 4373–2007 Pruning of amenity trees, Standards Australia 2007

Category:

Principal judgment

Parties:

Kevin McDonald (First Applicant)
Jennifer McDonald (Second Applicant)
Vicki Sheehan (First Respondent)
Andrew Hill (Second Respondent)

Representation:

K McDonald (Self-represented) (First Applicant)
J McDonald (Self-represented) (Second Applicant)
V Sheehan (Self-represented and Agent) (First and Second Respondents)

File Number(s):

2021/328433

Publication restriction:

No

Judgment

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

Background to the application

1. Kevin and Jennifer McDonald (‘the Applicants’) have applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for pruning of four turpentine trees on neighbouring land belonging to Vicki Sheehan and Andrew Hill (‘the Respondents’). The McDonalds want the trees reduced in height to restore views they enjoyed when they came to their property 22 years ago.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The Applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the Applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

3. If all these tests are met, the Court can make orders at s 14D(1) “to remedy, restrain or prevent the severe obstruction” of, in this case, a view from the Applicants’ dwelling.

4. The hearing took place onsite, with both Mr McDonald and Mrs McDonald self-represented, and Ms Sheehan representing herself and Mr Hill.

The Applicants made reasonable effort

5. The McDonalds have discussed the trees with Ms Sheehan and Mr Hill and sent written correspondence. They have reached some agreement to prune the trees, but the pruning proposed by the McDonalds would require consent from the Council of the City of Ryde (‘Council’). I find that their efforts to reach agreement with the Respondents were reasonable.

The trees are not planted so as to form a hedge

6. The scope of Pt 2A of the Trees Act is limited at s 14A:

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).

7. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ considered the intent of s 14A(1)(a). I summarise here three key requirements as follows. Firstly, the Court must be satisfied that the trees were intentionally planted, rather than growing from seed spread by wind or birds or the like. Secondly, the intentions at the time of planting must include establishing a hedge. And thirdly, the trees must still form a hedge in the present.

8. In this matter, I cannot be satisfied that the trees were planted by human hand. Ms Sheehan stated that the trees pre-exist the surrounding dwellings. The McDonalds were not sure if this was true but have provided no evidence to the contrary. It seems more likely that the trees, which are of a species common to bushland in this area, grew naturally from seed.

9. I cannot be satisfied that the trees were planted with any intention to form a hedge. The McDonalds submitted that the trees were put here to screen a shed on a property further downslope, but there is no evidence of this. The trees are not all planted in a straight line, nor are they at regular spacings. The trees have not been maintained as a screen by pruning. The McDonalds pointed to their interweaving branches forming a single canopy, but this is true of many trees that are not planted as hedges, and here there is nothing to indicate to me any intention to establish a hedge.

10. In the present, they do not appear hedge-like, as some other smaller vegetation on the property does. Rather they appear as four native trees growing close together.

11. For the reasons in the three preceding paragraphs, I find that Pt 2A of the Trees Act does not apply to these four trees and therefore I cannot make orders in these proceedings.

Other matters

12. I note that Ms Sheehan does not want to deny the McDonalds their views, but at the same time does not want her trees damaged by over-pruning. The view at stake includes a distant view of the Sydney CBD and the Harbour Bridge from the McDonald’s deck. The trees were lopped once in 2008 to restore that view but have since regrown and now obstruct the view again. The pruning works done in 2008 were not in accordance with the guidelines of AS 4373–2007 Pruning of amenity trees.

13. The four trees occur naturally in this area (they are locally indigenous); they are 15–20 metres tall with stem diameters of approximately 50–60 cm. They provide a leafy outlook from the back of the Respondents’ dwelling. Had I found that Pt 2A of the Trees Act applies to these trees (that is, if they were planted so as to form a hedge) and that they severely obstruct the McDonalds’ views, I would be required to consider the matters at s 14F of the Trees Act before making any orders, including consideration of the impact of any pruning on the trees (s 14F(k)). Although the four trees were topped (reduced in height) in 2008, they have since re-established healthy, well-formed crowns. Topping them again, as requested by the McDonalds, would lead to poor crown form; it would encourage future growth of epicormic branches that would require repeated pruning; it would shorten the trees’ useful life expectancies. In short, considering the impacts that the proposed pruning would have on these four trees, I would not make orders for pruning the trees in the manner sought. They are not trees suitable for maintaining as a hedge.

14. The parties are therefore restricted in the pruning they may carry out. They can either prune the trees to the extent that is exempt from Council’s consent requirements, or they could seek Council consent for more significant pruning. This was discussed at the onsite hearing – I observed that reducing the length of one branch nearest the Respondents’ dwelling would remove less than 10% of that tree’s total crown mass and would restore some of the valued view from the McDonalds’ deck. That is a matter for the parties to resolve.

Orders

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

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 25 March 2022