Short v Clem Doyle

[2017] NSWLEC 1407

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Short v Clem Doyle & Anor [2017] NSWLEC 1407
Hearing dates:	25 July 2017
Date of orders:	25 July 2017
Decision date:	25 July 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge – obstruction of views; trees to which the Part applies; obstruction not yet severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnston v Angus [2012] NSWLEC 192
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Allan Short (Applicant) Clem and Annette Doyle (Respondents)
Representation:	Applicant: Allan Short (Litigant in person) Respondents: Clem and Annette Doyle (Litigants in person)
File Number(s):	138693/2017
Publication restriction:	No

judgment

1. COMMISSIONER:   The applicants have lived at their Tanilba Bay address in the Port Stephens area since the early 1980s and have always enjoyed their water views. They contend that trees planted on the respondents’ property obstruct, and or will eventually obstruct, views from their dwelling.

2. 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 of a number of trees.

The Jurisdiction

3. 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.

4. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant’s land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies and which are on adjoining land.

5. The first test considers the trees to which Part 2A applies and is found in s 14A(1) which states:

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

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

(b)   rise to a height of at least 2.5 metres (above existing ground level).

6. In Johnston v Angus [2012] NSWLEC 192 Preston CJ provides a detailed analysis of the construction of subsection 14A(1)(a) of the Trees Act. At paragraphs [40]-[43] His Honour considers, amongst other things, the criteria relevant to the determination that the trees the subject of an application form a hedge, and were planted so as to form a hedge. These criteria include proximity, planting arrangement, species, relationship between species if the planting is a mixture of species, and function of the planting. Relevantly at [43], the age is relevant as a tree planted a number of years before/after other trees could not have been planted so as to form a hedge with such trees as they were not in existence. Part 2A does not apply to single trees.

7. 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”. This has been applied from the point of viewing the trees from a respondent’s land.

8. The next key test in applications made under Part 2A is found in s 14E(2) which 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.

9. The use of the word ‘are’ in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52].

The Application

10. The diagram in the application claim form attempts to indicate the location of most trees and shrubs on the respondents’ property. The orders sought relate to specific trees and or groups of trees.

11. Order 1 requests the removal of the front hedge or its maintenance to fence height. The trees the subject of this order are four Juniperus sp. of an unknown cultivar.

12. With the horticultural and arboricultural expertise I bring to the court, I am satisfied that these trees have been planted so as to form a hedge. The trees are closely spaced, linearly arranged, and comprise a species not uncommonly used for hedging. Therefore s 14A(1)(a) is met.

13. The heights were confirmed on site. Only one of the trees has attained a height of more than 2.5m above ground; this tree was 2.6m at its very tip and the others were less than 2.2m. Therefore, as s 14A(2)(b) is not achieved for at least two of the trees (see Wisdom v Payne at [66]-[67]), these are not yet trees to which the Part applies. While there was no requirement to test whether the trees are currently severely obstructing views from the applicants’ dwelling (see the jurisdictional test in s 14E(2)(a)(ii)), it is highly unlikely given their small stature as well as the gaps between the upper parts of the trees.

14. Orders 2-4 apply to other trees and shrubs in the respondents’ front yard. The plants specifically considered during the on-site hearing are a NSW Christmas Bush and two Poinciana trees.

15. The NSW Christmas Bush is a single specimen, thought by the applicants to have been planted in about 2006 by the previous owners of the respondents’ property. As a single specimen it is not a tree to which Part 2A applies and the Court has no jurisdiction to consider the orders sought by the applicants.

16. There are two Poinciana trees planted in the front yard. The respondents planted the larger of the two trees in about 2013. The other Poinciana is a small tree planted in 2016 approximately 5m away from the other Poinciana. These are not trees to which Part 2A applies as they have been planted in separate events as individual specimens. While their canopies may eventually meet, they have not been planted so as to form a hedge.

17. At the rear of the respondents’ property is a row of 12 Juniperus sp with a further four small Junipers planted as an extension of the row. The applicants seek orders for these trees to be removed or pruned. The trees are planted along the common side boundary. While some of the larger trees would meet the requirements in s 14A(1) and thus be trees to which the Part applies, they are only just above fence height and do not form a solid screen. At their current height, these trees could not be considered as severely, or even moderately obstructing any view from the applicants’ dwelling. Therefore, there is no jurisdiction to make the orders sought by the applicants.

18. Order (5) seeks the removal of a Jacaranda planted at the rear of the respondents’ property. As an individual tree, this is not a tree to which the Part applies and therefore is beyond the court’s jurisdiction to consider.

Conclusions and orders

19. Therefore, in conclusion, the Court’s jurisdiction to make orders under s 14D of Part 2A of the Trees Act is not engaged and thus the only orders the Court can make are:

1. The application is dismissed.

_______________________

Judy Fakes

Acting Commissioner of the Court

Amendments

04 August 2017 - Correction to Case Title

Decision last updated: 04 August 2017