McIntosh v Humphrey

[2015] NSWLEC 1115

Land and Environment Court

New South Wales

Medium Neutral Citation:	McIntosh v Humphrey & anor [2015] NSWLEC 1115
Hearing dates:	23 April 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge, views; trees not a hedge for the purpose of the Act
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Wisdom v Payne [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr P McIntosh (Applicant) Mr G and Mrs S Humphrey (Respondents)
Representation:	Counsel: Applicant: Mr P McIntosh (Litigant in person) Respondents: Mr G and Mrs S Humphrey (Litigants in person) Solicitors:
File Number(s):	20089 of 2015

Judgment

1. COMMISSIONER:   The applicant owns a property in Balgowlah. The respondents own the adjoining property to the west and downslope of the applicant’s property. The applicant contends that trees growing on the respondents’ property severely obstruct views of the northern part of Sydney Harbour and of ferries arriving and departing the Manly wharf.

2. The applicant has applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking the following orders:

1. The owner must permanently remove creepers, in particular the bougainvillea, that grow into the trees, and neighbouring properties, that create a solid canopy obstructing our views.

2. The owner must prevent the current, or future, trees from growing so big and dense resulting in the combined foliage creating a hedge blocking our view across the whole property.

3. The owner must prevent the current or future trees from growing into the north and south boundary properties thereby creating an obstruction to our views.

3. In applications made under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied before the Court’s powers to make orders under s 14D are engaged. The judgement in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 describes the sequence of steps.

4. The first test is found in s 14A(1)(a) which states:

1. This Part applies only to groups of 2 or more trees that:

1. are planted (whether in the ground or otherwise) so as to form a hedge.

5. The applicant identifies four trees as the subjects of his application. Tree 1 is a Brachychiton acerifolius (Flame Tree), Tree 2 is a Ceiba speciosa (Silk Floss Tree), Tree 3 is a Magnolia grandiflora (Bull Bay Magnolia), and Tree 4 is a Spathodea campanulata (African Tulip Tree). The trees are all mature specimens growing amongst other trees in the garden at the rear of the respondents’ property. They are in a broadly linear arrangement that extends diagonally across the respondents’ back garden. The trunk of Tree 3 is about 3m from Tree 4, Tree 4 is about 5m from Tree 2, and Tree 2 is approximately 2m from Tree 1. At the site inspection is was clear that the vines to which the applicant refers in his orders have been removed.

6. The respondents stated that the trees were well-established, and thought to be about 20 years old, when they purchased their property in 1971.

7. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the construction of s 14(1)(a) of the Trees Act. At [37] His Honour states, in part:

….The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are subject to 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 planted, the trees continue that state of affairs of being planted so as to form a hedge. The requirement of having been planted so as to form a hedge is to be understood as requiring the trees to be planted in order to form a hedge, or with the result or purpose of forming, a hedge.

8. At [40] and [41] His Honour continues:

[40] [relevantly]…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.

9. In Wisdom v Payne [2011] NSWLEC 1012 at [45], Moore SC and Hewett AC state:

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 of the trees 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 understanding of the word, would be perceived as a hedge.

10. In Cavalier v Young [2011] NSWLEC 1080, and in Coleman & anor v Leddy & anor [2013] NSWLEC 1094, the Court, as constituted, found that as the trees were randomly planted, Part 2A did not apply.

11. Returning to the trees the subject of this application, while they are generally in a line, the trees are widely and variably spaced and comprise a range of species that are not typically used as hedging species and nor have they been pruned in a way that is consistent with them having been planted or maintained as a hedge. The perception is that whoever planted the trees, planted the trees as individual specimens. I am satisfied that anyone visiting the respondents’ property and viewing the trees, would not perceive them as having been planted so as to form a hedge. The fact that canopies may inter-grow, as may occur in a forest, does not in itself create a hedge.

12. Therefore on the uncontested evidence that a previous owner planted the trees, and considering the spacing and species of trees, I am not satisfied that the trees the subject of the application are trees to which Part 2A applies and as such, the Court has no jurisdiction to proceed with the matter and the application must be dismissed.

13. As a consequence, the orders of the Court are:

1. The application is dismissed.

_____________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 24 April 2015