Wiseman v Van Ede
[2016] NSWLEC 1643
•21 December 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Wiseman & anor v Van Ede & anor [2016] NSWLEC 1643 Hearing dates: 21 December 2016 Date of orders: 21 December 2016 Decision date: 21 December 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; applicants made reasonable effort; view obstruction not severe; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smyth v Hayim [2012] NSWLEC 1318 Category: Principal judgment Parties: Richard Wiseman (First Applicant)
Sally Wiseman (Second Applicant)
Harry Van Ede (First Respondent)
Beryl Van Ede (Second Respondent)Representation: Richard and Sally Wiseman, litigants in person (Applicants)
Keith and Lorraine Kelly, agents (Respondents)
File Number(s): 254226 of 2016
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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In a semi-rural setting a short drive from the township of Berry, the Wisemans (‘the applicants’) have owned and lived at their property for approximately nine years. They have applied to the Court, pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for a neighbouring hedge of Cypress trees to be pruned to restore their views. Their neighbours, the Van Edes (‘the respondents’), dispute the extent to which their trees obstruct views and do not wish to prune the trees.
A brief timeframe
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At some point, the applicants’ property, approximately 1.5 hectares in area, was subdivided from the respondents’ property, which is now about 8 hectares in area.
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At some point, apparently in the 1990s, owners of both properties planted hedges of Cypress trees: a short row along the end of the common boundary near the road, planted on the applicants’ property; and a longer row of about 54 trees extending from there along the common boundary, planted on the respondents’ property.
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The Wisemans purchased their property in 2007.
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In mid-2008 the Wisemans wrote a letter to the Van Edes expressing their concern about the hedges growing up and obstructing their distant escarpment views. They offered to pay for all trees along the boundary to be pruned to reduce their height, and said they required access to the respondents’ property for the pruning of the trees on their own land.
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In 2016 the Trees Act was amended after review so that Part 2A applies to trees on land in zones designated ‘rural-residential’, which had previously been excluded from this Part.
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The Wisemans filed their application with the Court in August 2016.
Part 2A of the Trees Act
Section 14A(1)
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Part 2A of the Trees Act applies to groups of two or more trees that are planted so as to form a hedge, and that rise to a height of at least 2.5 metres above ground level. There is no dispute that Part 2A applies to the Cypress trees.
Section 14B
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As allowed by s 14B, the Wisemans have applied to the Court for orders to remedy an obstruction of views from their dwelling, as they believe the obstruction is severe and results from the neighbouring Cypress trees.
Section 14E(1)
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The Trees Act requires that the applicants make a reasonable effort to reach agreement with the respondents.
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The Wisemans submit that they wrote a letter to the Van Edes in 2008, not long after they purchased and when they first became concerned about their views becoming obstructed.
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Soon after, the Wisemans then visited the Van Edes to discuss the issue. They had one conversation that ended badly.
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The Wisemans did not want to provoke the situation further, given the response they had received. They therefore felt unable to take any further steps until the Trees Act was amended and they could apply to the Court.
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The Van Edes submit that no effort was made to resolve the situation by the Wisemans since 2008, and that further effort should have been made before the Court application was made. They do not believe reasonable effort has been made.
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Given the response they received to their initial approaches to the Van Edes, I accept that the Wisemans’ efforts were reasonable. The Court is not prevented from making orders on this basis.
Section 14E(2)(a)
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For the Court to make any orders, the Trees Act requires that the trees must be severely obstructing a view from the applicants’ dwelling.
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The Wisemans submit they had views of the distant escarpment and sky from living areas of their dwelling, views now obstructed by the trees. They say this is a severe obstruction.
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The Van Edes submit that such views of the escarpment may be limited from the applicants’ dwelling, regardless of the trees. They say the Wisemans’ view takes in their large landscaped garden between their dwelling and the trees, including a dam, lawn and other trees. They say the view obstruction is not severe.
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The Trees Act does not define ‘severely’. In Smyth v Hayim [2012] NSWLEC 1318 Fakes C discussed at (19) the dictionary definitions of ‘severe’, concluding that “the Act sets a high bar for the level of obstruction caused by the trees the subject of the application.”
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To assist the Court assess the severity of the view obstruction, a range of matters is listed at s 14F of the Trees Act. The trees are along the boundary, some 40—50 metres from the Wiseman’s dwelling (s 14F(a)). Although they might block partial views of the escarpment, I do not accept that the overall impact on views from the Wisemans’ dwelling is so severe that their enjoyment of their property might be affected. The respondents’ trees do not block more than 50% of the view from the living area windows. Because I am not satisfied that the trees are severely obstructing a view, I cannot make orders for their pruning.
Section 14E(2)(b)
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Even if the obstruction is found to be severe, the Court must consider the reasons for and against interfering with the trees. Again, the relevant matters listed at s 14F assist the Court.
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The Wisemans submit that the trees were around 5 metres tall when they purchased and they had views of the escarpment. They say they were unable to prune their own trees because they required access from the Van Edes' property, and wanted one contractor with a cherry picker to prune trees on both properties. They want the trees pruned to 4 metres or any height that would restore their views without damaging the trees. They do not want the trees removed. They say the trees stop sunlight reaching up to a quarter of their property during winter, and even prevent early morning sunlight reaching their windows.
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The Van Edes say the Wisemans’ own trees obstruct views. They point out that the Wisemans have not pruned their own trees. They say the trees were probably taller in 2007 than the applicants have suggested, and that distant escarpment views were probably limited when the Wisemans purchased their property. They say the onus is on the applicants to show what view they had, but photographic evidence is very limited and the applicants’ photos are not dated. They say the trees were planted around a paddock on their land to shelter cattle. Though they have no cattle at present the property is still suitable for such use. They say their land use and the tree planting fit the aims of the zoning category of their land. They say the applicants’ views include the garden.
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I find that the trees were there when the Wisemans purchased. They were an appropriate part of the landscape. It could be known at that time how the trees would grow and what the consequences would be.
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In their application, the Wisemans provided two photographs showing views of the escarpment above the trees when the trees were shorter. In one, only the top of the escarpment is visible. It is possible that they took this photo, but it is unclear when it was taken. The other photo, taken from the driveway alongside their dwelling, shows the trees to be shorter still, with more of the escarpment visible above. They rely on this photo to demonstrate the view they had at the time of their property purchase. They did not cite the source of the photograph in their application. During their submissions the Wisemans produced a copy of the real estate brochure promoting their property in 2007. The photograph referred to is from that brochure. The purpose of such promotional material is to show the property in its best light. It is possible that the photo in that brochure, showing a more open view of the distant landscape, was taken months or years earlier.
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The respondents’ land has been used for cattle breeding. The trees were planted as a windbreak to provide shelter around a paddock. They are fulfilling that purpose. They appear to be entirely suitable for the land use, the landscape character and the zoning of the land. This is not a cypress hedge in an urban environment, close to a dwelling, where frequent maintenance is likely to be required to control its size and impacts.
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The Wisemans’ views of distant landscape and sky are obstructed by other features. Their own cypress hedge and deciduous trees in their garden obstruct a considerable portion of the view. The pergola above their windows obstructs sky views. Their land slopes down to the common boundary and between their dwelling and the hedge they have a large picturesque garden with trees and a dam, to which the eye is drawn. Their outlook is not unpleasant and not significantly diminished by the trees, which, as discussed above, appear as a suitable part of the landscape here.
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In my view, the Wisemans could indeed have pruned or removed their own trees at any time, without access to the Van Edes’ property. A cherry picker may have been efficient, but was not required. Climbing arborists prune such trees as part of their routine work. The Wisemans have not taken their own action to increase their access to views, but expect their neighbours to take action.
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The trees are now mature. Pruning them to 4 metres as the Wisemans request, or 5—6 metres as they may have been in 2007, would result in severe impacts for the trees. They would be unlikely to reshoot well from the cut stems. They would lose their natural form and would appear unattractive. The hedge would not have the appearance of one that has been pruned regularly.
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The cost of pruning the trees, and then maintaining them at a lower height, would be onerous for the respondents.
Conclusion
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I find that the trees, being a considerable distance from the applicants’ dwelling, do not cause a severe obstruction of their views. Furthermore, even if the obstruction was found to be severe, after weighing relevant matters I would not be minded to make orders for pruning.
Orders
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The orders of the Court are:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 29 December 2016
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