Milne v Herald

[2022] NSWLEC 1338

Land and Environment Court

New South Wales

Medium Neutral Citation:

Milne v Herald [2022] NSWLEC 1338

Hearing dates:

25 November 2021

Date of orders:

5 July 2022

Decision date:

05 July 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application to remove trees T1–T4 is refused.

(2) The application to prune trees T5–T8 is granted.

(3) Once every year during July, commencing July 2022, the Respondent, or a suitably experienced and insured contractor engaged and paid for by the Respondent, is to prune the four camellias (T5–T8 in the application) so that each tree is no more than 4 metres above ground level measured from the base of each tree.

(4) The Respondent is to give the Applicant 7 days’ notice of the works in Order (3).

(5) The Applicant is to allow any reasonable access necessary to complete the works in Order (3) during reasonable times of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the obstruction is severe – whether the applicant had access to views

Legislation Cited:

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

Cases Cited:

Alameddine v Jones [2013] NSWLEC 1021

Condon v Scott [2021] NSWLEC 1160

McDougall v Philip [2011] NSWLEC 1280

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

Category:

Principal judgment

Parties:

Prudence Milne (Applicant)
Anna Herald (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
A Herald (Self-represented) (Respondent)

Solicitors:
Cornwalls (Applicant)

File Number(s):

2021/241368

Publication restriction:

No

Judgment

Background to the application

1. Prudence Milne’s Mosman property sits above Chowder Bay to the east. Her neighbour to the east, Anna Herald, has vegetation close to their common boundary. Ms Milne (the Applicant) has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for Ms Herald (the Respondent) to prune a row of four trees that she says obstruct a view from her dwelling, and to remove a separate row of four trees she says obstruct sunlight to her dwelling.

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 land adjoining the Applicant’s 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 Applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

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

• The obstruction is such that the Applicant’s 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 a view from the Applicant’s dwelling, or sunlight to a window of the dwelling.

4. The hearing took place via MS Teams, with Ms Milne represented by Mr Poisel, of Counsel, and Ms Herald self-represented. With the evidence before the Court, and submissions made during the hearing, I have been able to make this decision without requiring a site view.

The Applicant made a reasonable effort

5. Since June 2021, Ms Milne has made several attempts to resolve both the issue of sunlight obstruction and the issue of view obstruction (Annexures J, K and L of Exhibit C). Those attempts were unsuccessful. Nevertheless, I am satisfied that Ms Milne made a reasonable effort to reach agreement with Ms Herald.

Hedge 1

6. Ms Milne seeks orders to prune four camellias (T5–T8) in Hedge 1 to remedy an obstruction of a view from her dwelling.

The trees are planted so as to form a hedge

7. The four camellias are planted in a row on Ms Herald’s land near the common boundary. Ms Herald purchased her property in 2009. She stated that the camellias were 5 metres tall at that time, as they are now. During her oral submissions, Ms Herald suggested that the camellias might have sprouted naturally, rather than being planted. Considering their layout here, in a straight line, and the common use of camellias as a screen in situations such as this, I find they were planted rather than being self-sown. While the intent of the person who planted the camellias is not known, camellias are often planted as hedge plants. They were planted in a row near the side boundary. They have grown to form a hedge. I find that the camellias are trees to which Pt 2A of the Trees Act applies.

The trees severely obstruct a view from the Applicant’s dwelling

8. At the front of Ms Milne’s dwelling is an outdoor covered terrace with a table for dining. From this terrace, a water view (V1) is obstructed by one of the camellias (T6). Parts of the view are obstructed by other elements in the landscape, including some cypress further from the dwelling. Photographs A and B in Exhibit D show the remaining water view that might be available between the cypress were it not for the camellia T6. It is reasonable to assume that the water view is valued. Photograph P2-3 on p 12 of Exhibit C shows the camellia T6 obstructing the entirety of that remaining water view from a sitting position at the table on the terrace.

9. Ms Herald relied on photographs she took from Ms Milne’s dwelling to argue that her camellias do not severely obstruct the view. A water view is available in photograph P (Exhibit 1), but this was taken from inside Ms Milne’s dwelling, rather than from the outdoor terrace. Photograph Q, taken from the outdoor terrace, shows a similar outlook to that shown in Ms Milne’s own photographs, with the water view obstructed by the camellia.

10. When establishing the view sharing principle in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140, then Senior Commissioner Roseth acknowledged the value placed on water views. To assess the obstruction of a view, Roseth SC suggested using qualitative terms (at [28]): negligible, minor, moderate, severe or devastating. I find the camellia’s impact on Ms Milne’s view is more than moderate but less then devastating. I am satisfied that a tree in Hedge 1 severely obstructs a view from the Applicant’s property.

Orders should be made to remedy the view obstruction

11. Before the Court makes any orders, Ms Milne’s interests in remedying the view obstruction must be weighed against any reasons to avoid interfering with the trees (s 14E(2)(b)). Foremost in Ms Herald’s submissions is any impact to her privacy resulting from a reduction in the camellias’ height. Below I consider those matters at s 14F that are relevant to Hedge 1.

12. The trees are close to the common boundary and to Ms Milne’s outdoor terrace.

13. Neither party provided evidence regarding the status of trees in Hedge 1 in relation to any requirement for consent from Mosman Council to prune or remove the trees.

14. The camellias were well established at the time that Ms Herald purchased her property in 2009, and therefore also at the time that Ms Milne purchased hers in 2012. Ms Milne’s dwelling was constructed in 1997 (Exhibit 1, p 2). It is not known if the camellias were present when Ms Milne’s dwelling was constructed.

15. More relevant, here, is whether or not the trees severely obstructed a view when Ms Milne purchased her property: see McDougall v Philip [2011] NSWLEC 1280 at [22]–[24]. It is not the intent of the Trees Act to remedy a view obstruction that has always existed for the Applicant. Ms Milne submitted that she previously enjoyed the water view from her outdoor terrace. She relied on photographs A and B in Exhibit D to demonstrate this. At par 5 of that affidavit, she stated that the two photographs were taken on Christmas day 2014. Those photographs do show the water view available between more distant cypress trees.

16. Ms Herald explained the history of the subdivision of Ms Milne’s land. Whatever were the circumstances at that time, the subdivision was approved, as was, some time later, the location and layout of Ms Milne’s dwelling. Ms Herald submitted that, at the time that Ms Milne purchased her property, the camellias were roughly the same size as they are now, and therefore obstructed the view to the same extent then as they do now. Ms Milne relied on photographs (Annexures H–M, Exhibit 1) taken from within her property to show that the camellias were a similar height in 2009 to their height in 2021. The earlier photograph appears to be taken from a slightly different location to that used for the later photograph, altering the perspective and the apparent tree height. I found the photographs taken from Ms Milne’s terrace were more reliable for comparing the relative heights, past and present, of the camellias.

17. Ms Herald argued that the camellias were pruned without her permission in December 2016, when her property was rented out to others. This, she argued, was the only reason Ms Milne gained access to the otherwise obstructed view. Mr Poisel, Counsel for Ms Milne, pointed out that Ms Milne’s photographs showing the water view from her terrace were taken in 2014, well before the 2016 pruning referred to by Ms Herald. It seems to me, therefore, that Ms Milne’s photographs can be relied upon.

18. Additionally, Mr Poisel took the Court to Mosman Council’s 2016 determination of a 2015 application to subdivide the Respondent’s property. Council’s determination noted the loss of views that would result should the front part of the Respondent’s property be developed, particularly the loss of water views from the Applicant’s property.

19. I find the valued water view, now obstructed by the camellia T6, is a view Ms Milne previously enjoyed from her outdoor terrace.

20. Ms Herald is right to argue that the view should be considered from the whole of Ms Milne’s dwelling. Her photograph P (Exhibit 1) shows that a water view is available from a dining room within Ms Milne’s dwelling. Despite this, the outdoor terrace is an area where Ms Milne is likely to spend time with family and guests; and, as far as I can tell, restoring that view would not have the severe impact on Ms Herald’s privacy that she claims it would.

21. Ms Milne’s outdoor terrace is next to, and above, the front garden area of Ms Herald’s property. Ms Herald wants her family to enjoy time in the garden without the potential for overlooking from her neighbours. She submitted that Ms Milne has hedges on her own property for privacy, but is aggressive and coercive when it comes to neighbouring hedges. Ms Milne’s application sought a 10% reduction in the camellias’ height. There was general agreement during the hearing that the tallest camellia is currently about 5 metres tall. Mr Poisel suggested that orders should be made to prune and maintain the trees at a height of no more than 4 metres, measured from the base of each tree. If that height allows greater overlooking from Ms Milne’s outdoor terrace into Ms Herald’s garden, it seems this would only be an issue if one was standing at the eastern edge of the terrace. Most time spent on the terrace, it seems, would be at the table, from where the impact of any increased overlooking seems negligible.

22. Other inherent values of the camellias, including their contribution to landscape character and environmental values, would not be significantly affected by the proposed height reduction, nor would the trees’ long-term health and viability.

23. Considering the benefits to the Applicant of pruning the trees to restore a view, and the relatively minor impacts to the Respondent of the proposed pruning, I find it is reasonable to make the orders sought. While pruning one tree in the hedge is required to restore a view, the orders should extend to all trees in the hedge to maintain the hedge’s uniformity and to prevent further view obstruction.

Part 2A does not apply to trees in Hedge 2

24. Ms Herald planted four dragon trees (T1–T4) close to the common boundary. The trees are very close to bedroom windows in Ms Milne’s dwelling, the bedroom being lower than ground level. Ms Milne says the trees were planted in July 2021. One of the trees (T4) has since died. Ms Milne says the trees obstruct sunlight to the bedroom. She seeks orders for their removal and for a height restriction on any further plantings along this section of the boundary.

25. The three remaining dragon trees have single stems with whorls of strap-like foliage on only their upper stems. Ms Herald submitted that the trees are less than 2.5 metres tall. In her second affidavit (Exhibit D), Ms Milne stated at par 6 that the dragon trees are 2.55 metres above soil in her own raised garden bed, which is “roughly level with the garden bed on Ms Herald’s land”, that being the garden bed in which the dragon trees are planted. Mr Poisel argued that the trees are effectively more than 3.5 metres above natural ground level on the Applicant’s property when the height of the raised garden bed is considered. However, the Court has generally considered a tree’s height to be taken from soil level at the base of the tree: for instance, see Alameddine v Jones [2013] NSWLEC 1021 at [5]. It seems that the dragon trees are roughly 2.5 metres tall, or maybe a little taller, but the Court cannot be satisfied of this on the available evidence. Of course, a site view would have provided the opportunity for this issue to be settled, but the issue is not determinative as I find that the trees are not planted so as to form a hedge. They do not form a dense wall of foliage; they are not a species that can be pruned to form a dense screen: see Condon v Scott [2021] NSWLEC 1160 at [12]–[15]. So regardless of their height, the dragon trees are not planted so as to form a hedge and, therefore, Pt 2A does not apply to Hedge 2.

26. The planting of the dragon trees so close to the Applicant’s bedroom windows appears somewhat unreasonable, but that does not give the Court jurisdiction to make orders for their removal in these proceedings. I might suggest that they be planted a little further from the boundary, but their location perhaps reflects the nature of the relationship between the parties, which is not a matter I can influence here.

Orders

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

1. The application to remove trees T1–T4 is refused.

2. The application to prune trees T5–T8 is granted.

3. Once every year during July, commencing July 2022, the Respondent, or a suitably experienced and insured contractor engaged and paid for by the Respondent, is to prune the four camellias (T5–T8 in the application) so that each tree is no more than 4 metres above ground level measured from the base of each tree.

4. The Respondent is to give the Applicant 7 days’ notice of the works in Order (3).

5. The Applicant is to allow any reasonable access necessary to complete the works in Order (3) during reasonable times of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 05 July 2022