Land and Environment Court of New South Wales CITATION : Blau v Levi [2010] NSWLEC 1371 APPLICANT A Blau PARTIES : RESPONDENT C Levi FILE NUMBER(S) : 20641 of 2010 CORAM: Moore SC - Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- What constitutes a hedge; plants in pots that consituted a hedge at time of application moved prior to hearing; moved plants no longer a hedge Trees (Disputes Between Neighbours) Act 2006 LEGISLATION CITED: Antisocial Behaviour Act 2003 [UK] Imperial Acts Application Act 1969 Interpretation Act 1987 CASES CITED: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 DATES OF HEARING: 14 bDecember 2010 EX TEMPORE JUDGMENT DATE : 14 December 2010 APPLICANT Mr M Seymour, barrister INSTRUCTED BY Michael Rogers & Co LEGAL REPRESENTATIVES: RESPONDENT Mr G Christmas, solicitor Apex Planning and Environmental Law JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC FAKES C 14 December 2010 10/20641 Blau v Levi JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER : These proceedings concern an application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerning a number of elements of vegetation growing on the respondent's property in Rose Bay. 2 During the course of the view of the properties, a number of matters arose that needed to be dealt with, at the commencement of our consideration of these matters, to clarify the matters that were the subject of the application. A number of preliminary rulings were given by us during the course of the view regarding a number of applications for leave to amend; some granted, some refused. 3 In order to clarify that with which we are dealing, we should outline those matters. First, the original application lodged by the applicant proposed orders with respect to some plantings of bamboo at the rear of the respondent's property. That bamboo, it transpires, is located on the common property of the strata plan within which the respondent's apartment is located and, as a consequence – there being no application to the Court to which that body corporate is a respondent – it is necessary for us to dismiss that element of the application. 4 The second vegetation element in the application is that which is referred on p 23 of the bundle comprising the applicant's materials. This vegetation is what was described as a Buxus hedge approximately 2 metres high and growing rapidly. That hedge, located at natural ground level on a portion of courtyard area at a lower level of the respondent's property is, in fact, a Murraya hedge that is in excess of 2.5 metres high. It is, for the purposes of s 14A(1)(a) and (b) of the Trees Act, undoubtedly two or more trees planted in the ground forming a hedge and rising to a height of at least 2.5 metres above existing ground level. That element of the necessary jurisdictional tests with which we must deal are satisfied. 5 The next matter to which we wish to make observation (because it is essential, as a prerequisite foundation for any application), is that an application made pursuant to s 14B of the Trees Act must relate to trees that are situated on adjoining land – that is land which adjoins the land owned by the applicant. 6 In the very first case that was heard and determined pursuant to Part 2 of the Trees Act, also coincidentally heard by a bench as presently constituted, a case called P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 , we were obliged to consider what might be the meaning of the word "adjoining" for the purposes of the Act. 7 Taking a facultative approach, as is appropriate in this legislation in our view, we held that in that case adjoining meant encompassing properties across a public roadway that being consistent with the approach taken by the Court of Appeal in planning decisions (see Hornsby Shire Council v Malcolm (1986) 60 LGRA 429). 8 We are satisfied that, in this instance, although there is an intervening space comprising either part of the common property of the applicant's body corporate or part of the property of the owner of a tenement immediately below the tenement of the applicant, we should take a similar facultative approach and regard the strata lot of the applicant as being adjoining the strata lot of the respondent. 9 As a consequence, we consider that the appropriate decision-making path in considering these matters under the Trees Act is: - to consider s 14B (that includes the question of adjoining, as I have just dealt with); - followed by s 14A (that is the question of whether the trees satisfy the various matters in s 14A(1)); - followed by the mandatory matters invoked by s 14E; - then consideration of the broader evaluative matters contained in s 14F; - before then turning to the question of matters of discretion arising under s 14D as to what orders, if any, we might make. 10 There are, therefore, in our view, three vegetative elements that we are required to consider. We deal first with the Murraya to which I have just alluded. We are satisfied, from the inspection of the applicant's property, that the Murraya in no way interferes with or presently obstructs any view, let alone severely obstructs any view, from the applicant's property. 11 As a consequence of that, we are satisfied that s 14E(2)(a)(ii) is not met and we have no jurisdiction with respect to the Murraya hedge. As a consequence, that element of the application is also dismissed. 12 We now turn to the question of the vegetation elements that are located on the balcony. On one construction, there is a single vegetation element that is pressed on us, as we understand it, by Mr Seymour on behalf of the applicant and that the totality of that vegetative element comprises a hedge. 13 The proposition that is pressed, as we understand it, by Mr Christmas for the respondent, is that there are two separate vegetative elements. We do not understand him to dispute strongly that the element that is outside the glass balustrade and sitting in a series of tubs or planters on top of a concrete planter box constitutes a hedge but it is put strongly that that which is on the floor of the balcony is not a hedge. 14 We have read an affidavit provided by the applicant, sworn on 18 October 2010, that shows the movement by the respondent and a number of persons assisting him, of various of the vegetative elements, the shuffling of the trees and the relocation of a number of the elements both on the balcony and on the top of the planter box outside the balustrade. 15 It would certainly appear that at one stage, during that rearrangement of various elements of vegetation, that there were clearly two hedges, that is one outside the planter box and a closely spaced row of trees close to the face of the respondent's dwelling and running in a direction parallel to those on top of the planter box. That, however, is not the position that presently applies. 16 We have been taken to two documents that are said to assist us with how we might construe the words contained in s 14A(1). The first to which we have been taken by Mr Christmas is a number of sections contained in Part 8, High Hedges of the Antisocial Behaviour Act 2003 of the Parliament of the United Kingdom. That is not a matter, at least as I understand it (since the passage of enactments such as the Imperial Acts Application Act 1969) that presently forms part of the law of the State of New South Wales; nor is it imported as any of the extrinsic instruments to which we can have regard as a consequence of the Interpretation Act 1987 of the statutes of this State. It provides us no assistance in these proceedings. 17 We have also been taken to the definition in the Macquarie Dictionary of a hedge which, in its primary meaning, is a row of bushes or small trees planted close together especially when forming a fence or boundary and, as a lesser relevant element, any barrier or boundary. We are satisfied that although there is not an interlocking canopy for the vegetation that is in the planter boxes, nonetheless they constitute a hedge and that they satisfy the various elements of s 14A(1) of the Act. 18 With respect to the other vegetation on the balcony, despite Mr Seymour's valiant attempt to construe the diagram at Appendix D of Dr Lamb's evidence given on behalf of the respondent, we are not satisfied, at the present time, on our understanding of what we saw during the course of the view, that the vegetation on the balcony can constitute a hedge, whether or not adopting any particular view of what the meaning of the words "above existing ground level" might be. 19 We are satisfied that there were more than two trees, that they were planted but that they were not planted or arranged so as to form a hedge. As a consequence, we are satisfied that with respect to the vegetation on the balcony area, we should also dismiss the application. With respect to the material that is in the tubs, located on the planter box outside the glass balustrade, we are satisfied, as we have earlier indicated, that they constitute a hedge. 20 We then move to consider, as I have mentioned, the question of the matters raised by s 14E(2) and that is whether they are severely obstructing a view from the dwelling. We are satisfied that the use of the words "a view from a dwelling" and consistent nomenclature throughout Part 2Aof the Trees Act means that we are obliged to consider the fact that there may be a multiplicity of views from a particular dwelling and the nature and extent of those views and what might be the residual views are called up by our consideration of the evaluative matters contained in s 14F(q) of the Trees Act. 21 We are satisfied that, from the seated position at the applicant's outdoor dining area and from the seated location of the applicant's indoor dining area, there is a severe obstruction of the view towards the harbour in a direct line along the respondent's side balcony. That is, in part, caused by the vegetation which we have held does not constitute a hedge but an element of that view, we are satisfied, is severely impacted by the vegetation that does constitute a hedge. 22 It therefore turns to us to consider a number of the matters contained in s 14F, principally those contained in s 14F(l) – that is the privacy values said to be obtained by the respondent from those trees – compared to the extent of the obstruction of the view and the nature and extent of any remaining view for the applicant. 23 We are satisfied that the trees that are the hedge have been so placed in order to seek to effect privacy from overlooking of the respondent's property from a development at 7-9 Conway Avenue, Rose Bay. The nature and extent of the privacy protection provided by those vegetative elements that comprise the hedge is, in our view, modestly ineffectual given the nature of the vegetation that is contained in those pots. That, at least in our view, is potentially acknowledged by the addition of the other vegetative material that we have held is not a hedge. 24 However, the overlooking that is sought to be protected from that side is overlooking not only of the balcony area but also of the fenestration and doors into the living areas of the respondent's property. The protection that is provided by way of overlooking from the applicant's property is protection afforded by the vegetative material that is not a hedge rather than the vegetative material outside the balustrade that is a hedge. 25 As a consequence of what we consider to be the severe impact on that minor element of the view, an element that is the predominant element capable of being enjoyed from the sitting positions to which we have referred, we are satisfied that it is appropriate to order an intervention with respect to those trees in the planter box and to do so in a fashion which we do not consider will diminish significantly, if at all, the privacy protection afforded to the respondent by those plantings. 26 That intervention will require the lowering of the uppermost extent of those trees to a point 100 mm below the line of the top of the respondent's property (that is of the parapet on the respondent's dwelling) and the maintenance, on an ongoing basis, of that vegetation pruned to a height not exceeding the height of the parapet on the respondent's property. We are satisfied that, if that is to occur, it should occur entirely at the respondent's cost and that that should take place within thirty days of today's date. 27 Other than that, we do not consider that there is any appropriate basis upon which to order any broader intervention. Whilst the placement of the vegetation on the balcony may be as a consequence of the ineffectual nature of the screening provided by the trees that are planted outside the glass balustrade, that does not provide a trigger under the Trees Act. Whilst that might be a matter for social consideration by the respondent, with respect to those to the rear, that is also is not a matter that we are able to utilise this legislation to address because we are not satisfied that the vegetation on the balcony constitutes a hedge. 28 As a consequence of all of that, the orders of the Court are as follows: 1. The application with respect to the bamboo is dismissed; 2. The application with respect to the Murraya hedge is dismissed; 3. The application with respect to the containerised plants on the floor of the balcony is dismissed; 4. The application with respect to the containerised plants on the planter box beyond the glass balustrade is upheld in part; 5. The respondents are to engage and pay for an AQF level 3 arborist or horticulturist with appropriate insurances to prune the plants in order 4 to a point 100mm lower than the height of the parapet of the roof of the respondent's dwelling; 6. This work is to be completed within 30 days of the date of these orders; and 7. After compliance with orders 5 and 6, any plants located outside the glass balustrade in order 4 (whether planted in containers or in the planter box) are to be pruned so that they do not exceed the height of the parapet of the roof of the respondent's dwelling. Tim Moore Judy Fakes Senior Commissioner of the Court 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.