Land and Environment Court New South Wales Medium Neutral Citation: Ham v Hawkins [2024] NSWLEC 1462 Hearing dates: 27 March 2024 Date of orders: 27 March 2024 Decision date: 27 March 2024 Jurisdiction: Class 1 Before: Douglas AC Decision: The orders of the Court are: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – claimed severe obstruction of views and sunlight – do the trees form a hedge for the purpose of the Act – s 14F considerations – oversight from applicant's dwelling – privacy important Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Wood v Barnes [2017] NSWLEC 1106 Category: Principal judgment Parties: Kiam Ham (Applicant) Grahame Hawkins (First Respondent) Liz Hawkins (Second Respondent) Representation: Counsel: K Ham (Self-represented) (Applicant) C Koikas (Respondents) McKees Legal Solutions (Respondents) File Number(s): 2024/31569 Publication restriction: Nil Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. COMMISSIONER: Kiam Ham, the applicant, shares a common side boundary with Grahame and Liz Hawkins, the respondents, between their properties in Mosman. Mr Ham has occupied his property since 2009 while the respondents have lived in situ since 1999. 2. Disputes between the parties commenced in 2010 over a hedge, a retaining wall, and the installation of a high fence by the respondents which allegedly blocked Mr Ham's water views from the lower level of his dwelling. In response to an objection to Mosman Council (Council) by Mr Ham, the approved height of a 2010 addition to the respondents' dwelling was reduced, "to maintain the water view from the adjoining property". 3. The Hawkins' back garden included trees and shrubs growing near the common boundary which Mr Ham claimed were increasingly obstructing his views. In 2010, the parties undertook mediation and with assistance from their legal representatives, made a formal agreement for the respondents to retain their vegetation below the top of the common boundary fence. 4. Mr Ham claimed the respondents had planted three trees within the required view clearance since 2013: an Olive tree, a Fig Tree, and an unidentified flowering tree. The applicant alleged the Hawkins failed to comply with the 2010 agreement, regardless that Mr Ham sent them an annual reminder since 2013. 5. In 2019, Council approved a development application (DA) from Mr Ham for demolition and construction of a new two-storey dwelling, which retained west facing windows roughly in existing positions but added considerably to the rear of the upper level. Upon completion in 2020, Mr Ham occupied the dwelling and resumed requests for tree pruning by the respondents. 6. In February 2023, Mr Hawkins lodged an application with Council for Fig tree pruning and was granted permission to prune up to 10% of the tree's canopy with a condition in Council's determination that "[t]ree height is not to be reduced". In March 2023, the respondents' legal representatives advised Mr Ham of Council's determination of the pruning application and withdrew a prior offer to maintain the Fig tree at or below an agreed height. 7. In November 2023, the respondents received a letter from Council's Director of Environment and Planning regarding a complaint from a customer about the view impacts of the Fig tree. The letter advised, "should you wish to make an application to prune or remove the tree in question, Council would consider this favourably. It is understood this action would resolve the issue and would seek to restore Council's intention with view sharing when it considered your development application some time ago". 8. As the respondents made no further application to Council for Fig pruning or removal, Mr Ham made an application under s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), proposing the Court make orders to restore his views and sunlight obstructed by the respondents' trees. The on-site hearing 1. The hearing commenced with an inspection of the respondents' rear yard. Mr Ham was self-represented while the respondents were represented by Mr Koikas of Counsel. The application diagram nominated four trees: the Fig (T1), the 'red flowering tree' (T2), the Olive (T3), and a deciduous Syrian Hibiscus (T4), which Mr Ham withdrew from his application during the hearing. 2. The common boundary extended from north northeast at the street to south southwest at the rear. T1 – T3 were in separate locations along the common boundary and the respondents contended they had not been planted to form a hedge. In his Written Submission of 21 March 2024 (Exhibit 1), Mr Hawkins claimed the Fig tree, which was about 4 metres (m) tall, was self-sown within the existing rock outcrops, had been there since before the respondents purchased the property, and that the location of the Fig's roots amongst the rock outcrop was "an inappropriate location to purposely plant a Ficus". 3. The previously unidentified T2 was a Grevillia which was about 1.8 m tall while the respondents contended that T3 was a sentimental gift, and its planting location was chosen to allow viewing from their loungeroom. The Olive tree was about 5.5 m tall. 4. Alternatively, Mr Ham contended the respondents had planted the trees in front of his windows to intentionally obstruct his previously available water views, that his photographs from 2020 did not indicate the Fig tree was present, and that an historical photograph from the respondents' lawyers alleged to be of the Fig tree appeared to Mr Ham to be "a low shrub". Further, Mr Ham claimed that "the notion of a self-seeded Ficus is highly unlikely" (because) "Ficus trees (are) normally grown by cuttings domestically". 5. The Court moved to the applicant's property and considered the view obstruction as a consequence of the trees from various locations, then proceeded with oral submissions. 6. In his Written Submission, dated 22 March 2024 (Exhibit D), Mr Ham requested the Court consider the respondents' lawyers non-compliance with Order 7 of the Registrar's orders of 5 March 2024, to serve Respondent's evidence and alternative orders on the applicant and Council by 19 March 2024. The documents had instead been filed on 21 March 2024. 7. In making such a determination, the Court assesses the impact of the late submission, which reduced the applicant's time to contemplate Mr Hawkins' evidence from 8 days to 6 days. Given that Mr Hawkins' submission of 21 March 2024 contained only 4 pages of straightforward text and 12 pages of Annexures, to which Mr Ham responded the following day, I find that the applicant was not materially disadvantaged by the documents' late filing, and the issue is thus resolved. 8. Mr Ham also claimed that the respondents' lawyers had made a "demonstrably misleading statement regarding the application date" of his 2018 DA, but the respondents' lawyer's reference to the date of Mr Ham's DA application rather than the date of his DA approval had no bearing on the application under the Trees Act. Jurisdictional requirements – Part 2A 1. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22]. 2. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views, or of sunlight to a window of the applicant's dwelling. If so satisfied, the Court must consider a range of matters such as privacy and environmental benefits the trees provide. Do the trees form a hedge? 1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act? 2. Section 14A(1) 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). 1. Though Mr Ham's submission of 12 March 2023 (Exhibit C) noted that, "the Mosman Council tree inspector identified the Ficus as a non-native low value species and listed as noxious under council's tree preservation policy", this was not the case. T1 was a Ficus rubiginosa (Port Jackson Fig), endemic to and commonly found in the Sydney region. Port Jackson comprises Sydney Harbour, Middle and North Harbour, and the Lane Cove and Parramatta Rivers. T1 was located on a sandstone shelf, with thick roots snaking amongst the rock's many crevices. The branch scaffold was complex and squat. Based on the arboricultural expertise I bring to the Court, I was satisfied that the tree was self-sown and was long established, at least 30 years old and likely considerably older. 2. The origin and growth pattern of T1 submitted by Mr Hawkins were plausible and probable in light of my observations on site, and typical of the environmental adaptations characteristic of Ficus rubiginosa, and many fig species. These environmental adaptations are highly unusual, however, and in the context of the ongoing dispute, it is unsurprising Mr Ham considered it unlikely. 3. Port Jackson Fig seeds are distributed by birds, flying foxes, and other fauna, and they often germinate in tree and palm canopies, on cliffs and steep slopes, and rock cervices into which they are washed or blown. Following germination, fine roots extend wherever conditions are conducive in terms of water and nutrients. Such figs may spend many years or decades without soil, surviving epiphytically from moisture absorbed through root surfaces, and nutrients from pockets of humus and organic matter occupied by extending roots. Commensurately, such figs usually develop only a modest 'bonsaied' foliage cover under such conditions. 4. When nutrient availability improves, the trees' growth rate increases accordingly. A classic example is a fig tree that germinated high in another tree and takes decades progressively extending a mass of fine roots down the host tree's trunk and branches. Roots finally reaching and establishing in the surrounding soil, however, results in a significant increase in water and nutrient availability and a profound increase in growth rate, and rapid canopy development. The figs roots thicken and may encircle the host and prevent its subsequent growth in girth, and this eventually kills the host: hence they are referred to as strangler figs. Port Jackson Figs possess this propensity. 5. As contended by Mr Hawkins, the rock outcrops where the T1 was located was "an inappropriate location to purposely plant a Ficus". No soil was visible amongst thick solid roots that filled most adjacent cracks and spilled across the rock surfaces. The sandstone extended many metres in all directions from the base of the trunk, which was the tree's likely original location. Therefore, it was unclear where its roots were gaining nutrients, but with the benefit of Sydney's record highest rainfall level in 2020 and above average rainfall levels since, the tree had apparently sourced improved nutrient availability allowing it to grow from a low shrub form consistent with its squat, internal branch structure, to its current height. 6. In Johnson v Angus [2012] NSWLEC 192 (Johnson), at [37]-[44], Preston CJ provides commentary on s 14A(1)(a), the requirement the trees are planted (whether in the ground or otherwise) so as to form a hedge: "[37] I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis (particularly [24] – [25]) establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge. [38] If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees. [39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge. [40] Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape. [41] But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge. [42] The factors considered by the Commissioner in determining whether the Turpentine was planted so as to form a hedge with the palms (in paras 28-30) were not factors that were excluded as irrelevant by s 14A(1)(a) of the Trees Act. [43] Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine. [44] For these reasons, I reject the Johnsons' submission that the Commissioner erred in law in his construction and application of s 14A(1)(a) of the Trees Act to the Turpentine." 1. Considering his Honour's comment in Johnson; at [38], "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees", I am satisfied T1 was self-sown, therefore it is not part of a hedge for the purpose of the Trees Act. 2. If, hypothetically, T1 had been planted, it still could not have formed a hedge because it is much older than T3, which was planted in 2013. The size, location, and complex nature of T1's visible root system, the broad, heavily tapered root/ trunk interface, and the distinct hierarchy of branches in the compact lower canopy left me in no doubt that T1 was at least 30 years old, and likely older. 3. Though the tree species are different, the facts are the same as in Johnson; at [43], where his Honour says: "… As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine" (emphasis added). 1. With T1 set aside, T2 and T3 are considered. T2 was about 1.8 m tall, thus only T3 is taller than 2.5 m. As s 14(A)(1)(b) applies only to groups of 2 or more trees that rise to a height of at least 2.5 metres, T2 and T3 do not satisfy s 14A(1)(b) of the Trees Act. 2. While orders may be made for severe obstruction of views as a consequence of a hedge under s 14A of the Trees Act, no such remedy is available under the Trees Act for severe obstruction of views as a consequence of individual amenity trees. 3. Mr Ham introduced a large clump of Strelitzia nicolai (Giant Bird of Paradise) for consideration as a hedge obstructing views and sunlight. This species has a growth habit similar to banana with offshoots emerging from the base of mature stems and thus progressively forming a clump, often from an individual plant. The clump was large and established and the configuration of its stems displayed no sense of order. 4. In Wisdom v Payn [2011] NSWLEC 1012; at [45], the Commissioners state: "[45]...We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not to be in a perfectly straight line, the impression that is given by the planting arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge." 1. Neither party provided evidence as to the origin of the Strelitzia nicolai and its initial planting would have long predated Mr Ham's occupation. There was no evidence to satisfy me that the Strelitzia nicolai had been planted so as to form a hedge. In Wood v Barnes [2017] NSWLEC 1106; at [10], and [16], Fakes C reached similar conclusions about this species. 2. As a consequence of neither T1-T3, nor the Strelitzia nicolai clump satisfying the requirements of s 14A(1) of the Trees Act, the application is refused. Severity of obstructions 1. Mr Koikas argued that had T1-T3 engaged s 14A, the applicant's view obstruction by the trees could not be found to be severe. Mr Koikas cited Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), which contains a four-step process on view sharing, the first three of which are often referenced by the Court in applications under Pt 2A of the Trees Act. 2. Specifically, Mr Koikas noted the third step, at [28] of Tenacity, which says: "The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively negligible, minor, moderate, severe or devastating." 1. From his elevated two-storey property, Mr Ham enjoyed views across a broad western arc over the respondents' property, especially from the living area in the new top storey rear extension. Mr Ham contended that this room was inhospitable, and his family preferred to use downstairs living areas, but this choice by the applicant does not remove the availability of excellent water views from the dwelling's upper level. High-quality water and landscape views were also available from north facing bedroom windows, but again, Mr Ham minimised their significance. 2. In the context of consideration of views available from "the whole of the property, not just for the view that is affected", consistent with Tenacity's third step, the obstruction of views as a consequence of T1-T3 is far less than severe. 3. Similarly, even if the clump of Strelitzia stems had been deemed a hedge for the purposes of the Trees Act, Mr Ham claimed it caused a severe obstruction of sunlight to his back lawn. As the jurisdiction of Pt 2A is limited to severe obstruction of sunlight to a window of a dwelling, obstruction of sunlight to a lawn or garden fails to satisfy the requirements of the Trees Act. Conclusion 1. From the adduced evidence, I am not satisfied the applicant has proven, on the balance of probabilities, that the respondents' trees were planted for the purpose of forming a hedge as required by the Trees Act. Therefore, s 14A(1) is not met and the trees do not form hedges to which Part 2A of the Trees Act applies. 2. As his Honour stated, at [38] of Johnson; "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees." 1. As these trees do not meet the requirements of s 14A(1) of the Trees Act, the Court has no power to make orders. Even if T1 – T3 had been determined to be a hedge for the purposes of the Trees Act, I am not satisfied they caused a severe obstruction of the applicant's views from his dwelling. Orders 1. As a consequence of the foregoing, the orders of the Court are: 1. The application is refused. J Douglas Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2024