Reed and anor v Mason and anor

[2013] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reed & anor v Mason & anor [2013] NSWLEC 1159

Hearing dates:

15 August 2013

Decision date:

23 August 2013

Jurisdiction:

Class 2

Before:

Fakes C

Decision:

Application under Part 2A dismissed.

Fence to be repaired and bamboo managed; costs to be shared

Catchwords:

TREES [NEIGHBOURS] Damage to property; determination under s13A of the Dividing Fences Act 1991; Hedge - obstruction of views

Legislation Cited:

Civil Procedure Act 2005
Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145
McDougall v Philip [2011] NSWLEC 1280
Owen & anor v Mason & anor [2011] NSWLEC 1301
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Mr M and Mrs D Reed (Applicants)
Mr C and Mrs S Mason (Respondents)

Representation:

Counsel
Applicants: Mr M Cottom (Solicitor)
Respondents: Mr G Fordham (Agent)
Solicitors
Applicants: HWL Ebsworth Lawyers

File Number(s):

20430 of 2013

Judgment

1. COMMISSIONER: The applicants in this matter have applied under s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for a range of orders requiring the respondents to carry out a number of actions.

1. The application under Part 2 seeks orders for the rectification of a section of dividing fence, allegedly damaged by the respondents' bamboo, and the removal of all portions of bamboo within 100mm of the fence so as to prevent future damage.

1. The application under Part 2A concerns obstruction of views of Burraneer Bay. The applicants are seeking orders for the pruning of trees to nominated heights and their subsequent maintenance by the respondents.

1. The respondents contend that there is no severe obstruction of views from the applicants' dwelling and that the fence in question is located on the respondents' land and therefore, it is beyond the Court's jurisdiction to make orders for its rectification.

The Part 2 Application

Application to amend

1. The original application filed with the Court and served on the respondents sought orders for, amongst other things, the removal of all portions of bamboo in contact with, or within 100mm of, the metal dividing fence. Following this, the respondents were to rectify the damage to the fence.

1. Following the filing of an affidavit by the second respondent in which it is stated that the fence in question was wholly paid for by the respondents and installed 100mm within the respondents' property, the applicants sought leave to amend the application. The amended application is made pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 and/ or s 13A of the Dividing Fences Act 1991. The orders sought are unchanged.

1. In a bundle of further evidence tendered by the applicants, a 2010 survey and Surveyors' Report shows the fence in question to be 100mm from the boundary and inside the respondents' property.

1. Section 7 Part 2 of the Trees Act states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

1. The Court has no jurisdiction under Part 2 itself to make orders for rectification of damage to property on a respondent's land as a consequence of a respondent's own trees.

1. Therefore, in this matter, as the respondents paid the full cost of the fence and had it installed on their land, it would seem that, absent the amendment to use s 13A of the Fences Act, the Court would not have the jurisdiction to make the orders sought by the applicants.

1. Section 13A of the Dividing Fences Act 1991 (Fences Act) states:

13A Jurisdiction of the Land and Environment Court

(1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies.

(2) This section only applies if:

(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and

(b) the tree that is the subject of those proceedings:

(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or

(ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant's property or is likely to cause injury to any person.

1. Section 3 of the Fences Act - Definitions, defines 'dividing fence' as 'a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.

1. The respondents opposed the amended application due to the fact that they only had 24 hours notice of the proposed amendment. Mr Fordham, the respondents' agent considered that this was not in the spirit of clause 5 of the Court's "Practice Note - Class 2 Tree Applications" which states:

It is the responsibility of each party and their legal practitioners and agents (as applicable) to consider the orders and directions appropriate to be made in the particular case to facilitate the just, quick and cheap resolution of the tree application.

1. Section 64 of the Civil Procedure Act 2005 enables the Court to grant leave to a party to amend any document in the proceedings at any stage of the proceedings. Subject to s 58, the amendments are to be made for the purpose of determining the real questions raised the proceedings. In deciding whether to grant an amendment, section 58 requires the Court to follow the dictates of justice. Amongst other things, these include the provisions of s 56, the degree of complexity, the actions of the parties, and the degree of injustice that would be suffered by the respective parties.

1. Section 56(1) of the Civil Procedure Act 2005 states:

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. At the on-site hearing I determined to allow the amended application. While I acknowledge the respondents' objection to the short notice, I am not satisfied that any injustice has been caused to the respondents.

1. The Court's jurisdiction is potentially engaged by s 13A(2)(a) and (b)(i) of the Fences Act. The real issue is damage to a dividing fence, despite the fact it is located on the respondents' property, it is the dividing fence between the parties' properties and the applicants have a legitimate interest in its condition. While the applicants could have pursued an action in the Local Court or Land Board under s 13 of the Fences Act, it is in the interests of the just, quick and cheap resolution of the matter that it is dealt with in these proceedings.

1. Section 14 of the Fences Act describes the orders as to fencing work that the Local Court and, through s 13A(5), the Land and Environment Court may make under this Act.

1. Fencing work is defined (relevantly) as:

(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose,

and includes:

(c) the planting, replanting and maintenance of a hedge or similar vegetative barrier,

Has the bamboo damaged the dividing fence?

1. The applicants contend that one panel of the metal dividing fence has been displaced and damaged by the respondents' bamboo. The first applicant stated that when he purchased his property in June 2012 (some 14 months ago), he did not notice any damage to the fence. While one panel is most affected, the applicants contend that other panels are slightly displaced off vertical.

1. The applicants' position is that the rapid growth rate of the bamboo has damaged the fence over the period they have owned their property. They are also concerned that given its growth rate, height and propensity to sway in the wind, the bamboo will cause future damage.

1. The respondents had the fence built in 2000 at their expense. They stated that a fencing contractor advised them that it is not uncommon for metal fences to fall out of vertical alignment, especially after 13 years. The respondents contend that had they been made aware of it earlier, they would have remedied the situation without it escalating to court orders.

1. I am satisfied on the evidence that the bamboo on the respondents' property has caused damage to the dividing fence and therefore the Courts' jurisdiction under s 13A of the Fences Act to determine the matter is engaged.

1. The applicants engaged Ross Jackson of Jacksons [sic] Nature Works to prepare an arborist's report. Mr Jackson identifies the bamboo as Bambusa vulgaris (Yellow-stemmed Bamboo), a vigorous clumping species. He notes that there are five clumps planted along the western side boundary of the respondents' property. In his report, Mr Jackson states that clumps A, B and D have pushed the metal fence out of vertical alignment but he makes no reference to the buckled panel near clump A.

1. At the hearing, the buckling of one panel of the fence near clump A was apparent and most likely caused by shoots growing beneath the fence. Given the extent of buckling, I am surprised the applicants did not notice it when they purchased their property. While it is clear that some of the posts elsewhere along the fence are slightly off vertical, the degree is minor, the fence panels are in good order, and the fence is fully functional. Apart from the buckled panel, I do not consider the remaining parts of the fence to be "damaged" as yet. The effect is essentially cosmetic.

1. In regards to the orders that should be made, I consider that the single panel that is clearly buckled should be replaced and its supporting posts re-set in a vertical position. To enable this and to prevent similar damage to the same and nearby panels, I consider it appropriate for any bamboo shoots touching the fence, or within 100 mm of the base of the fence at ground level, to be removed to ground level. As this is a dividing fence, I consider it appropriate that the parties share the cost of this work. Orders will be made for the respondents to undertake routine maintenance to minimise any future damage to the fence.

The Part 2A application

1. The applicants contend that a row of 43 trees growing along the respondents' eastern boundary severely obstruct views of Burraneer Bay from three parts of the balcony at the rear of the applicants' property.

1. In essence, the applicants seek the following orders:

• Trees 1-7 to be pruned to 6m and maintained at 6.3m
• Trees 8-43 to be pruned to 4m and maintained at 4.3m
• All branches overhanging the applicants' property to be removed.

1. According to Mr Jackson, trees 1-33 are mostly x Cupressocyparis leylandii (Leyland Cypress), Trees 34-43 are mostly Pittosporum tenuifolium with some Metrosideros excelsa. Trees 26-43 are growing along the boundary between the respondents' property and the property to the south of the applicants' property.

Are the trees planted so as to form a hedge?

1. In applications 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.

1. The first of these jurisdictional tests is s 14A(1) in regards to whether Part 2A applies to the trees about which the application is made.

1. There is common ground between the parties that the trees are planted so as to form a hedge and rise to a height of more than 2.5m.

1. Landscape plans for the respondents' property indicate that at least 12 Leyland Cypress (most likely T1-T12) were planted in 1998 before additional trees were planted in 2000 as part of the landscaping that accompanied the construction of a new pool.

1. Therefore, given the two distinct planting events, there are technically two hedges; hedge 1 the original Leylands, Hedge 2 the later plantings. This is simply to establish that Part 2A of the Trees Act applies to the trees the subject of the application. However, the trees in the two adjoining hedges effectively form a generally continuous screen of vegetation along the respondents' eastern boundary. The trees, which comprise the hedges, have been pruned to a range of heights.

Is there a severe obstruction of a view from the applicants' dwelling as a consequence of the trees to which this Part applies?

1. The next relevant jurisdictional test is s 14E(2). This states:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

Background to the application

1. The applicants purchased their property in June 2012. In June 2013 they lodged this application for orders requiring the pruning of the respondents' trees in order to restore the views they maintain they had the benefit of when they purchased their property. The viewing points and the views said to be obscured are detailed in the application claim form and summarised below.

1. Viewing point A (VA) is the western corner of the applicants' balcony closest to the respondents' property and the dwelling. The view is described as being a view of Burraneer Bay to the west and down the length of the Bay included scattered boats in the foreground and the land/water interface on the opposite shore.

1. The obstruction from VA as a consequence of the trees is said to be of foreground views across the width and length of the Bay. The applicants state they are deprived of views of the water and scattered boats from both standing and sitting positions. They contend that at the time of lodging the application the only view was of the western side of the Bay with most of the land/water interface obscured.

1. Viewing point B (VB) is midway along the same balcony. The views are primarily of the bay to the southwest down the length of the Bay towards a marina and the mouth of the Bay. There are some foreground and peripheral views of boats across the width of the Bay in it northerly part. The predominant view is of boats down the length of the Bay and the western/south western shore.

1. The applicants contend that trees 1-7 and 8-13 ensure that western views across the Bay are predominantly if not entirely obscured from VB. Some water views towards the southwest are maintained as trees 17-26 are lower however the foreground views of the Bay are obscured from a sitting position. Due to the heights of trees 25-43, views down the length of the Bay are largely concealed.

1. Viewing point C (VC) is from the recessed eastern part of the balcony. The view is predominantly to the west/ southwest across the width of the Bay. Foreground views include boats scattered across the Bay and background views are of the western shore.

1. According to the claim form, the trees mask much of the westerly view across the Bay from VC. Background views of houses and vegetation on the western side remain, with almost no views of the foreshore and land/water.

The views at the time of the hearing

1. It appears that some time between the filing of the application and the on-site hearing, the respondents undertook some pruning of the trees. The Cypress closest to the respondents' dwelling were measured at the hearing to be about 6m tall stepping down to approximately 4 - 4.5m either side of one taller Cypress about midway along the row. The trees at the southern end and opposite the adjoining dwelling were about 6-7m tall

1. From the various viewing points, from both sitting (VA) and standing positions, I saw views to the west and southwest to Burraneer Bay including boats on the water and the land/water interface of the western shoreline. The northern tidal mudflats/ high tide was not visible. The trees on the respondents' property punctuated the view of the Bay. There was a narrow view to the south between the two-storey dwelling to the south of the applicants' property and the trees at the southern end of the row.

The respondents' position

1. The respondents contend that the applicants purchased their property with filtered views to the Bay across a side boundary. They tendered real estate agent descriptions and photographs taken from the applicants' property when it was on the market. An advertisement from Highland Property Agents describes the property as having "filtered water views up Burraneer Bay". Photographs in Exhibit 2 and Exhibit F (exhibit F being material pertaining to the applicants' property from Greg Gilbert Real Estate - the agent from whom they purchased the property) include the same shots taken towards the Bay from well within the applicants' open plan living/dining room and from a position closer to VB.

1. The wide angled photograph from within the room show the trees towards the south (probably trees 25-43) obscuring a portion of the view to the southwest but with a view of the Bay, boats and western shoreline visible across parts of the respondents' hedge 2. Hedge 1 appears to completely screen the respondents dwelling and obstruct whatever district or shoreline views may be beyond.

1. The wide angled photograph from the balcony (presumably taken from a standing position) shows generally westerly views across Burraneer Bay with boats as well as the land/water interface of the western shoreline. The view of the water is somewhat punctuated and separated by at least one Leyland Cypress that has been kept at a higher level than the adjoining trees. Low tide mudflats are visible at the near northern end of the Bay. The trees in the two adjoining hedges range in height and the overall effect is uneven.

1. The respondents value the trees for the privacy they afford their property. They stated that since the time the trees were planted, there have been developments on adjoining properties that have threatened that privacy. These include the construction of the applicants' balcony in 2009 and the addition of a second storey to the property to the south.

1. These developments have led to the different heights to which the trees have been pruned. The Leyland Cypress immediately between the parties dwellings are kept relatively high as is another Cypress about midway along the row. The mid-row tree screens the respondents' balcony from the balcony at the rear of the property to the south. The planting of mostly Pittosporums towards the southern end of the property is kept higher to maintain privacy between that two-storey dwelling on the adjoining property.

1. The respondents contend that they have pruned the trees in a way that maintains the views the applicants had when they purchased the property but retains the privacy benefits the trees provide. They argue that there is no severe obstruction; at best the obstruction of views across a side boundary is minor.

1. The respondents claim that the circumstances of this application have changed little from the application made by their former neighbours and owners of the applicants' property, the Owens. They contend that the findings made in Owen & anor v Mason & anor [2011] NSWLEC 1301 should be the same in that the application be dismissed as there is no severe obstruction of views from the applicants' dwelling as a consequence of the respondents' trees.

The applicants' submissions

1. Mr Cottom for the applicants contends that when the entire hedge is considered, the cumulative impact of the taller trees adds to a severe obstruction of views from the applicants' dwelling. He submits that trees T1-T7 severely obstruct the view of the land water interface and that the taller elements interrupt significant and desirable water views.

1. He maintains that it is unreasonable for the hedge to be uneven in height and that the reasonable approach is to have an even height that achieves a balance between the applicants' desire to maintain their views and the respondents' need for privacy. Mr Cottom also considers that the heights sought in this application are not as onerous as the heights sought in the previous application by the former owners of his clients' property. With respect to the orders sought for the removal of any branches overhanging the applicants' property, Mr Cottom submitted that these branches contribute to the overall density of the obstruction.

1. In regards to the qualitative aspects of the view and the Planning Principle in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140, Mr Cottom contends that the views towards the Bay from the western side of the balcony, being that part of the balcony used for outdoor dining, are significant and aesthetically pleasing views of the water and the land/water interface.

Findings

1. It was not the intent of the 2010 review of the Trees Act (and its extension to include Part 2A) to provide an applicant with more sunlight or views than were available to them when a property was purchased (see discussion in McDougall v Philip [2011] NSWLEC 1280 at [20] - [25]).

1. The best evidence of the views that were available to the applicants when they purchased their property are the images used by the two real estate agencies. Perhaps with the exception of slightly more obstruction at the near northern shoreline, the views observed on the day of the hearing appear to be very similar to the views shown in the photographs.

1. In regards to the 'view', the applicants have selected three specific locations along the same balcony. In regards to what constitutes 'a view' for the purpose of Part 2A, I have consistently applied the interpretation discussed at length in Haindl v Daisch [2011] NSWLEC 1145 and essentially summarised in paragraph [26]:

26 However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

1. It is the applicants' choice as to where on the wide balcony they choose to locate an outdoor dining table or where to sit/stand to observe the Bay.

1. I do not accept Mr Cottom's proposition that the obstruction should be considered on a cumulative basis. The evidence suggests that the views available to the applicants when they purchased their property were always punctuated by various trees within the row. It appears that Highland Property Agents were not exaggerating their description of those views as being "filtered".

1. On the scale of impact outlined in Tenacity I consider that the obstruction caused by the change in heights of the trees from the time the applicants' purchased their property to now is negligible to minor and certainly not severe. It is a matter of taste, practicality or any number of reasons as to why trees in a row may be kept at different heights; there is no obligation for trees that may form a hedge to be maintained at the same height.

1. Therefore I find that s 14E(2)(a)(ii) is not satisfied and there is no requirement to consider s 14E(2)(b) and the discretionary balancing of interests inherent in that clause. As the Court's jurisdiction to make orders is not engaged, this element of the application is dismissed.

Orders

1. As a consequence of the foregoing, the Orders of the Court are:

(1) The application pursuant to s 13A of the Dividing Fences Act 1991 is upheld.

(2)   Within 30 days of the date of these orders the respondents are to obtain at least 3 quotes for the removal and replacement of the single damaged panel of metal fence and the re-setting to vertical of the support posts for that panel. The work is to include the removal to ground level of any bamboo shoots within 100 mm of the fence when measured at ground level and any shoots touching the fence panel. Should they wish to, the applicants may obtain up to 2 quotes for the same work.

(3)   The parties are to provide all reasonable access on reasonable notice for the purpose of quoting.

(4)   Within 35 days of the date of these orders, the parties are to have exchanged quotes and agreed on the nominated contractor.

(5)   The respondents are to engage and pay for the nominated contractor to carry out the works in (2). The works are to be completed within 60 days of the date of these orders.

(6)   The applicants are to provide all reasonable access for the works in (2) to be undertaken in a safe and efficient manner on at least 2 working days notice.

(7)   The applicants are to reimburse the respondents 50% of the cost of the works in (2) within 21 days of the receipt of a tax invoice for the completed works.

(8)   The respondents are to maintain the bamboo along the length of the dividing fence so as to avoid future damage to the fence.

(9) The application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 is dismissed.

____________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 23 August 2013