Shearer v Orchard

[2017] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shearer & anor v Orchard & anor [2017] NSWLEC 1146
Hearing dates:	23 March 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge – obstruction of views; majority of trees not trees to which the Part applies
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Gary Shearer and Tracey Shearer (Applicants) Alan Orchard and Linda Orchard (Respondents)
Representation:	Applicants: Mr Williams (Barrister) Respondents: Ms L Orchard (Litigant in person) Solicitors: Applicants: CBD Law
File Number(s):	377045 of 2016

judgment

1. COMMISSIONER: The applicants have applied under s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking either the removal or pruning to 2.5m of up to 29 trees growing on the respondents’ Hardys Bay property. The trees are listed in a report prepared by Mr Mark Bury, an arborist.

2. The orders are sought on the applicants’ contention that the trees severely obstruct views of Brisbane Water from their dwelling.

3. The respondents state that there is no hedging of their trees but rather an informal pattern of trees which comprise largely self-sown trees. They contend that the only trees they have planted are a number of Port Jackson Pines (Callitris rhomboidea), a locally occurring species, which they planted in 2000 shortly after the applicants completed the construction of their dwelling.

4. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged. The sequential nature of these tests is explained in some detail in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122.

5. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge [emphasis added].

6. The applicants engaged Ms Elizabeth Ashby, an ecologist, to inspect the trees in Mr Bury’s report and, amongst other things, indicate their provenance and likely source, that is – naturally occurring, self-sown, or probably planted. Of the 29 trees, for the reasons she provides in her report, Ms Ashby considers that 21 are probably planted, seven are naturally occurring, and one large Spotted Gum is dead. The ‘possibly planted’ trees include a number of Silky Oaks (Grevillea robusta) and Illawarra Flame Trees (Brachychiton acerifolius).

7. In oral evidence, Ms Ashby agreed that both Grevillea robusta and Brachychiton acerifolius are species known to self-seed and in some localities are classed as environmental weeds.

8. The respondents indicated large specimens of both species growing on nearby properties. They stress that apart from the Port Jackson Pines, the trees are self-sown.

9. Mr Williams, for the applicants, submits that there is a sufficient linear relationship between the trees, as well as an interlocking and continuous canopy that has the effect of forming a hedge.

Findings

10. The trees in question are located at the rear of the respondents’ steeply sloping block. The applicants’ property adjoins to the rear.

11. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants self-seeded or are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] – [41] the relevance of other criteria such as species, proximity and arrangement are discussed.

12. ‘So as to form a hedge’ has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the “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”.

13. I observed the overall arrangement of plants to be a largely random arrangement of species at reasonably wide spacings over a relatively large portion of the rear of the respondents’ property. From a distance, the vegetation has a ‘bushland’ appearance. Apart from two rows of closely planted Port Jackson Pines, each row with three trees, there is no discernible pattern that would lead me to conclude that even if the trees had been planted, they would be considered to be forming a hedge. I strongly suspect that the vast majority of the trees are indeed self-sown and not planted. The applicants have not provided any probative evidence to disprove the respondents’ statements that any of the trees, apart from the Port Jackson Pines, have been planted.

14. I have heard and considered similar submissions to Mr Wilson’s on a number of occasions (for example Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339) and have found the argument of interlocking canopies to be insufficient in itself to meet the criteria of being ‘planted so as to form a hedge’.

15. Overall, on the evidence before me, I find that only Port Jackson Pines, numbers 2, 3 and 5 (as numbered in the application claim form) and 17 and 18 (plus one additional tree not shown on the plan) and which all exceed 2.5m in height, are trees to which Part 2A applies. Trees 2, 3 and 4 are in the south-east corner of the respondents’ property close to the rear/common boundary fence. The remaining trees are parallel and relatively close to the respondents’ western boundary fence.

16. On the basis of this preliminary finding, and on instructions from his clients, Mr Williams conceded that there would be no merit in continuing the proceedings. This is presumably because the majority of any view that may be blocked would be obscured by the trees to which Part 2A does not apply. The Port Jackson Pines are estimated by Mr Bury to be about 4m tall.

17. This being the applicants’ position, the only Court order that can be made is:

1. The application is dismissed.

___________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 24 March 2017