Swadel v Chissell

[2022] NSWLEC 1513

Land and Environment Court

New South Wales

Medium Neutral Citation:

Swadel v Chissell [2022] NSWLEC 1513

Hearing dates:

11 March 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is granted to the extent of the following orders.

(2) Within 30 days of the date of these orders, the Respondent is to engage a suitably insured landscape contractor or arborist to prune the three lilly pillies forming a hedge along the Respondent’s common boundary with the Applicants’ property so that they are no higher than the upper edge (nearest the common boundary) of the Respondent’s garage.

(3) While the lilly pillies remain in the landscape, during April each year beginning April 2023, the Respondent is to engage a suitably insured landscape contractor or arborist to prune them so that they are no more than 500 mm above the upper edge (nearest the common boundary) of the Respondent’s garage.

(4) The Respondent is to give the Applicant at least 2 days’ notice of the pruning in orders (2) and (3) and is to remove any debris that falls from the pruning into the Applicant’s property should the Applicant wish.

(5) Periodically, as they see fit, the Applicant may prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further.

(6) The exhibits are returned except for A, B and 1.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether the obstruction is severe – orders for pruning

Legislation Cited:

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

Cases Cited:

Milne v Herald [2022] NSWLEC 1338

Murphy v Moeskops [2021] NSWLEC 1686

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

Category:

Principal judgment

Parties:

Michelle Ann Swadel (Applicant)
Julie Anne Chissell (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
J Chissell (Self-represented) (Respondent)

Solicitors:
Hones Lawyers (Applicant)

File Number(s):

2021/285405

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: On an east-facing slope at Wamberal, Michelle Swadel (the Applicant) and her family live on a property upslope from Julie Chissell (the Respondent). Ms Chissell’s garden includes trees along the common boundary shared by the parties. Ms Swadel has requested that some trees be pruned to restore or maintain her view, without success. Ms Swadel 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 Chissell to remove three lilly pillies (the trees), or to prune and maintain them at a height of 3.5 metres above ground level.

2. At the onsite hearing, Ms Hammond, counsel for the Applicant, sought leave to amend the application with the inclusion of an additional tree. The application was rejected. Ms Swadel had the opportunity to carry out all investigations she might require, including an inspection of the Respondent’s property if needed, prior to filing material to be used in these proceedings. Ms Swadel has responded to the application and evidence that was served on her. It would now be unfair for her to respond to additional evidence or submissions presented at this late stage.

Framework for this decision

3. At s 14A, Pt 2A of the Trees Act only applies to certain trees.

14A Application of Part

(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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

4. Before the Court can make any orders, the jurisdictional tests at s 14E of the Trees Act must be satisfied.

14E Matters of which Court must be satisfied before making an order

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

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

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

(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.

Pt 2A of the Trees Act applies to the trees (s 14A)

The Applicant’s position

5. Ms Swadel’s application presents the following situation:

• Three lilly pillies (Syzygium smithii) grow on Ms Chissell’s property, next to the common boundary that they share.

• The trees are planted at regular spacings to form a hedge.

• The trees are more than 7 metres tall.

The Respondent’s position

6. Ms Chissell submitted that the Applicant has not provided evidence establishing that the trees were planted so as to form a hedge.

Findings

7. The trees appear to form a hedge at present. They are all the same species, which is one that is commonly used for screening and hedging. They are planted in a straight line along a boundary. They have been pruned in the past to reduce their height. While the intent of the person who planted the trees might not be in evidence, this does not prevent the Court making a finding based on evidence at hand: for recent examples see Murphy v Moeskops [2021] NSWLEC 1686 and Milne v Herald [2022] NSWLEC 1338. I am satisfied on the balance of probabilities that these lilly pillies were planted with an intent to form a hedge along this boundary. They are more than 2.5 metres tall, so Pt 2A of the Trees Act applies to these trees.

The Applicant made a reasonable effort (s 14E(2)(a)(i))

8. Correspondence provided to the Court (in annexures to Exhibit B) demonstrates that Ms Swadel raised her concerns with Ms Chissell prior to commencing these proceedings. Ms Chissell’s own version of events (in Exhibit 1) shows that the relationship between the parties has not always been friendly and cooperative. I am satisfied that the Applicant made a reasonable effort to reach agreement with the Respondent.

The trees severely obstruct a view (s 14E(2)(a)(ii))

The Applicant’s position

9. The back of the Swadels’ dwelling and their pool deck have views to the east. They look across the landscape of Wamberal to the ocean. It is a pleasant view. The Swadels found the view became obscured by trees as they grew, including the three lilly pillies. Apart from the Swadels’ opinion that the trees now severely obstruct their view, they also rely on the expert report by town planning consultant, Lance Doyle.

10. Mr Doyle used the view assessment process described by Senior Commissioner Roseth in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity). Firstly, he noted that the view includes water and the land-water interface. Secondly, he noted that views are from the Applicant’s living areas, across the rear boundary of her property. Thirdly, Mr Doyle acknowledged that the view was not entirely obstructed, concluding that the qualitative description of the obstruction might not be devastating, but it is severe. When considering the view from the whole property, Ms Hammond submitted that the view from the kitchen, living room and deck was the Applicant’s primary concern as these were living areas; whereas the view from the upper level was not from a common living area.

The Respondent’s position

11. Ms Chissell submitted that the view obstruction is not severe. She argued that Mr Swadel spends time on the upper-level deck when working from home, so the view there could be considered to be from a living area. Therefore, when considering the impact of the trees on views from the entire dwelling, the obstruction could not be considered to be severe.

Findings

12. I find the three lilly pillies severely obstruct a view from the Applicant’s dwelling. The main living area, where a family and visitors are most likely to spend time together, is on the lower level, not the upper level. Obstruction of views from the living area level would have the greatest impact to the Swadels. The three lilly pillies together form a dense screen of foliage that cannot be seen through. They are close enough to the Swadels’ dwelling that this screen obstructs a significant amount of the valued view. In the terminology of Tenacity, the obstruction is more than ‘moderate’ but less than ‘devastating’: it is severe.

The view obstruction warrants orders from the Court (s 14E(2)(b))

13. The final jurisdictional test requires the Court to weigh the Applicant’s interests in gaining some remedy for the view obstruction against any matters that suggest against interfering with the trees. Relevant matters are set out at s 14F of the Trees Act.

The trees’ location

14. The three lilly pillies are close to the common boundary, and close enough to the Swadels’ dwelling to severely obstruct their view.

The Applicant had access to a view

15. The trees were on the Respondent’s land when the Swadels purchased their property in 2011. Ms Swadel submitted that the trees were then approximately 3.25 metres tall, while they were 7.25 metres tall at the time she commenced these proceedings in 2021. In 2011, other trees were present on both the Respondent’s property and the Applicant’s property. A row of bamboo grew on the Applicant’s side of the common boundary. These other trees also impacted the view to varying degrees. Nevertheless, Ms Hammond submitted that the Swadels enjoyed greater view access in the past, compared to the present, and Mr Swadel’s affidavit included photographs taken in 2013 and 2014 (Annexure 3 to Exhibit B) to demonstrate this.

16. Ms Chissell submitted that the Swadels did not have greater view access when they came to their property in 2011. In her affidavit (Exhibit 1) Ms Chissell described the history of various requests and agreements to prune the trees, as well as pruning carried out without her consent. She wrote that she agreed to the trees being pruned in 2013. Ms Swadel submitted that the Swadels’ own bamboo grows up into the view. She also submitted that the Applicant’s 2013 photographs were chosen to show views from particular parts of their deck, and that the representation of the view locations was not accurate, so they could not be compared directly with 2021 photographs.

17. The Swadels’ 2013 photographs show that water views were not obstructed by the lilly pillies at that time. Other trees, more distant, partially obstructed small sections of the view. The outlook is markedly different to that shown in the Swadels’ 2021 photographs and the view observed at the onsite hearing, with the lilly pillies’ solid screen blocking a larger part of the view. Despite the various angles and viewing points of some of the photographs, comparing them with observations made during the hearing satisfies me that the lilly pillies did not obstruct the view to the extent that they do now.

18. Photographs used for advertising the Respondent’s property in 2011 show the lilly pillies then had a less significant impact on the view from the Applicant’s pool deck compared to the present obstruction.

19. If the trees were pruned in 2015 or 2016 without the Respondent’s consent, that does not alter my finding that, prior to that even, the Applicant had a view that is now severely obstructed by the lilly pillies.

Council consent

20. Ms Chissell submitted that Central Coast Council’s (Council’s) consent would be required to prune the trees, although up to 10% of each tree could be removed annually without Council’s consent. She wrote in her affidavit (para 38) that a Council officer told her that he would never allow pruning to a height of 3.5 metres as proposed by the Applicant, as this would damage the trees.

21. While the extent of tree pruning should, as a general rule, be minimised where possible, these lilly pillies respond well to pruning, which is one of the reasons they are such a popular hedging plant. Pruning to the height proposed by the Applicant might leave the trees looking somewhat bare and woody for a short period, but their new growth would quickly cover over this. If they are regularly maintained at the reduced height, an attractive green hedge could be re-established here. Removing more than 10% of each tree’s foliage would only be required at the first pruning event.

The trees’ benefits

22. The three lilly pillies contribute to Ms Chissell’s garden landscape. They may provide some habitat for possums and other animals. They contribute in a small way to the ecosystem services provided by the overall urban forest. They otherwise contribute no significant amenity beyond Ms Chissell’s garden.

Privacy

23. Ms Chissell submitted that the trees provide privacy to her north-facing deck, which could otherwise be seen from the Swadels’ property and the property to their north. Other trees that provided privacy have been removed, so she now relies more on the lilly pillies. Ms Hammond submitted that any potential for overlooking from the Applicant’s property was limited to Ms Chissell’s vegetable garden, which did not seem significant.

24. Ms Chissell’s deck is a significant distance from the dwelling to the Swadels’ north, such that privacy issues are relatively minor. Screening limits overlooking directly from the Applicant’s property. To my mind, the impact on Ms Chissell’s privacy if the trees are pruned would be minimal.

Impacts of pruning

25. Pruning the trees to a height that would restore the Applicant’s views should have only a short-term visual impact on the trees. They should quickly reshoot from pruned branches so that new growth established a green screen again, albeit it at a lower height. The species tolerates severe pruning, so that the trees would not be adversely affected in the long term.

Other factors contributing to the obstruction

26. Other trees that are more distant contribute in a small way to the view obstruction, but do not form a dense screen as the lilly pillies do. The Swadels can control the height of other trees and bamboo that grow on their own property.

The nature of the view obstruction

27. The trees are evergreen, providing a dense screen throughout the year. The valued view from the Applicant’s living areas includes the beach and ocean.

Actions taken by the parties

28. The Applicant has requested pruning to restore the view. For a period, the Respondent granted some pruning, but since the relationship between the neighbours has to some extent broken down, Ms Chissell has not agreed to further pruning. If the Swadels pruned the trees without consent some years ago, that is not something I can remedy here. Considering the nature of the relationship between the parties, it seems unlikely that one would take action to appease the other, so restoring the Applicant’s view would require orders from the Court.

29. Having considered the relevant matters at s 14F, I find there is significant advantage to the Applicant if the Court makes orders to prune the trees, and little disadvantage to the Respondent.

Nature of the orders

30. The Applicant suggested referring to levels above ground or reduced levels (RLs) if the Court orders that the trees’ height be reduced. However, this leaves open a greater potential for ongoing disagreement between the parties when the Applicant cannot easily determine if the orders have been followed. In this case, the most practical reference point is the Respondent’s garage roof, which is not far from the trees. Reducing the lilly pillies firstly to the height of the upper edge of the garage roof would allow for regrowth, with annual future maintenance pruning them at a height 500 mm above the roof edge. The garage roof is seen to the right of the trees in the photo on pp 12 and of 24 in Mr Doyle’s report (Exhibit C). The upper edge of the garage roof is the edge nearest the common boundary.

Orders

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

1. The application is granted to the extent of the following orders.

2. Within 30 days of the date of these orders, the Respondent is to engage a suitably insured landscape contractor or arborist to prune the three lilly pillies forming a hedge along the Respondent’s common boundary with the Applicants’ property so that they are no higher than the upper edge (nearest the common boundary) of the Respondent’s garage.

3. While the lilly pillies remain in the landscape, during April each year beginning April 2023, the Respondent is to engage a suitably insured landscape contractor or arborist to prune them so that they are no more than 500 mm above the upper edge (nearest the common boundary) of the Respondent’s garage.

4. The Respondent is to give the Applicant at least 2 days’ notice of the pruning in orders (2) and (3) and is to remove any debris that falls from the pruning into the Applicant’s property should the Applicant wish.

5. Periodically, as they see fit, the Applicant may prune any of the lilly pillies’ branches that overhang their property back to the common boundary but no further.

6. The exhibits are returned except for A, B and 1.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 23 September 2022