Popovac v Kennedy

[2021] NSWLEC 1635

Land and Environment Court

New South Wales

Medium Neutral Citation:

Popovac v Kennedy [2021] NSWLEC 1635

Hearing dates:

18 October 2021

Date of orders:

18 October 2021

Decision date:

18 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned except for A and 1.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether all trees are planted so as to form hedges – whether the view obstruction is severe – application refused

Legislation Cited:

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

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

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

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

Category:

Principal judgment

Parties:

Simo Popovac (Applicant)
Dominic Kennedy (First Respondent)
Jessica Kennedy (Second Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
L Sims (Respondents)

Solicitors:
McCabes (Applicant)
Bick & Steele (Respondents)

File Number(s):

2021/199974

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. Simo Popovac (‘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 neighbouring trees to be pruned and maintained so as to restore views from his North Curl Curl property, which he has owned since 2007. The trees subject to the application are on the adjoining property belonging to Dominic and Jessica Kennedy (‘the respondents’).

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 applicant 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 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 orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent, in this case, a severe obstruction of a view from the applicant’s dwelling.

4. The hearing took place via MS Teams. Two reports from arborists assisted the Court: one by Melanie Howden of Footprint Green, for the applicant, and the other by Catriona Mackenzie of Urban Forestry Australia, for the respondents. Neither expert was required at the hearing. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view. Mr Vergotis, solicitor, represented the applicant, while Ms Sims, of Counsel, represented the respondents.

The applicant made reasonable effort

5. Mr Popovac wrote to the respondents asking for trees to be pruned. He attempted to arrange mediation with the respondents, unsuccessfully. I am satisfied that his efforts to reach agreement with the respondents were reasonable.

The trees, and questions to be determined

6. The trees were described by both arborists with only minor variations in their dimensions. Mr Vergotis expressed a willingness to rely on Ms Mackenzie’s description, which I include here.

7. A row of 12 brush cherry trees (Syzygium australe) (‘T3’ in the application), 2.7–2.9 metres tall, grows in a planter box adjacent to the respondents’ rear or northern fence, being the common boundary fence shared with the applicant. This row of trees is further broken into two groups based on different pruning heights: ‘T3A’ with seven trees and ‘T3B’ with five trees. It is not disputed that these trees together (T3) form a hedge.

8. At its eastern end, being the north-eastern corner of the respondents’ property, the planter box in which the T3 trees grow extends for a short distance southward along their eastern boundary. A tuckeroo (Cupaniopsis anacardiodes) (‘T1’) approximately four metres tall grows in this section of the planter box, close to the easternmost tree of T3. The applicant claims that this tree forms part of the hedge with trees in T3, whereas the respondents say it is a separate tree.

9. Some distance to the south along the respondents’ eastern boundary is a row of three blueberry ash (Elaeocarpus reticulatus) (‘T2’) approximately 4.8 metres tall. It is not disputed that these three trees form a hedge.

10. To summarise, there are two hedges: one being the three trees in T2; the other being either the 12 trees only in T3, or the 12 trees in T3 along with T1. I note here that the applicant does not claim any current or past obstruction of a view caused by trees in T2 or T3, but he does claim that T1 causes a severe obstruction of his views. Therefore I must determine only:

• Is T1 part of a hedge with trees in T3?

• Does T1 severely obstruct a view from the applicant’s dwelling?

• And if so, is the view obstruction such that reasons to make orders for trees in the hedge outweigh any reasons not to. Consideration would then need to be given to relevant matters at s 14F.

11. Orders cannot be made to prune the three blueberry ash (T2) as they do not severely obstruct a view. The applicant is concerned that these trees will obstruct his view if not maintained. While the Court can make orders to prevent a view obstruction, the trees must first pass the jurisdictional test such that the Court is satisfied they severely obstruct the applicant’s view. They do not.

Is T1 part of a hedge with trees in T3?

12. Mr Vergotis argued that the Court must find that T1 forms a hedge with T3. He took the Court to Ms Howden’s statement on page 8 of her report:

“Although T1 is a different species, is offset from the lineal plantings in T3A & T3B and has not been pruned to the height of trees T3A & T3B, the canopy foliage of T1 forms a continual visual block of vegetation with T3A & T3B trees and therefore T1 is considered to be part of Hedge 1.”

13. Mr Vergotis took the Court to photographs taken from the applicant’s property, showing the foliage of T1 visible immediately behind that of trees in T3, with nothing else visible between. Mr Vergotis argued T1 and trees in T3 are all planted in the one raised planter box, so they are a single planting forming a single hedge. He opined that a landscape plan in Ms Kennedy’s affidavit shows only what was planned, not the actual situation in the present, which is shown on a survey plan by Mepstead & Associates dated 10 September 2021, a copy of which is included in Ms Howden’s report.

14. Ms Sims argued that T1 is not part of the hedge. Ms Sims took the Court to a landscape plan (in Exhibit 1) developed for the respondents and on which their landscape was based. Trees in T3 are shown as a single planting group, a long rectangle labelled “screening plants” in the “brick planter box”, while T1 is drawn separately as a circle and labelled “screening tree”. According to Ms Sims, “exposed rock” shown at the rear of the site explains why all these trees were planted in a built planter box. This does not make all plantings in that planter box a single hedge. Ms Sims also pointed that the surveyor who completed the Mepstead survey plan identified trees in T3 by drawing one long outline along the planter box, but did not include tree T1 within that outline. Rather, the surveyor identified T1 by a separate arrow. Ms Sims suggested that T1 therefore did not appear to the surveyor to form part of the hedge.

15. I find that T1 is not part of a hedge. The landscape plan indicates it was planned and planted as a separate element to the hedge. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28], Chief Justice Preston found that s 14A(1)(a) of the Trees Act limits the application of Pt 2A: not only must the trees form a hedge in the present, but the intent at the time of planting must be to form a hedge. The landscape plan suggests otherwise – tree T1 would be a separate landscape element. Furthermore, in the present, tree T1 does not appear as part of a hedge. Figure 2.2 of Ms Howden’s report shows T1’s foliage is physically separate from the foliage of trees in T3. All trees in T3 are planted in a single straight line, while T1 is not part of that line. T1 is a different species and is taller than trees in T3. For these reasons, a person coming into the garden would be likely to identify trees in T3 as a hedge, but would be unlikely in my view to regard T1 as part of that hedge. The Mepstead survey reinforces this notion. The applicant’s own sketch plan in Exhibit A also shows T1 as a separate element, not part of the T3 hedge.

16. T1 is not planted to form a hedge. As a result, Pt 2A of the Trees Act does not apply to T1. The hedge along the respondents’ northern boundary is made up of trees in T3 only. By the applicant’s own statements, trees in T3 do not obstruct a view, so orders cannot be made for those trees. It follows that the application must be refused.

Does T1 severely obstruct a view from the applicant’s dwelling?

17. Had I found that T1 formed a hedge with trees in T3, I would have reason to assess the severity of any view obstruction it causes. I rely here on the range of terms used at [28] of Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140: “negligible, minor, moderate, severe or devastating.” While T1 obstructs a view of North Head from parts of the applicant’s terrace (Plates 8 and 9 of Ms Mackenzie’s report and Figure 8.4 of Ms Howden’s report), and that part of the view might be regarded as iconic, the impact on the overall view might be mildly annoying, or ‘minor’, but is not severe. The view of North Head is readily available from most of the applicant’s rear terrace, and is also available from other viewing points shown in the kitchen and dining room. The Court should consider the view in its entirety rather than slicing up the outlook: Haindl v Daisch [2011] NSWLEC 1145. From most viewing points, tree T1 obstructs a small part of the distant water view, as shown in Figures 3.2, 8.1 and 8.3 of Ms Howden’s report and Plates 5 and 6 of Ms Mackenzie’s report. The remaining view is expansive. The obstruction is not severe.

Orders

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

1. The application is refused.

2. The exhibits are returned except for A and 1.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 20 October 2021