Land and Environment Court New South Wales Medium Neutral Citation: Deans & anor v Silverthorn & anor [2017] NSWLEC 1523 Hearing dates: 14 September 2017 Date of orders: 21 September 2017 Decision date: 21 September 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; trees not trees to which the Part applies Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnston v Angus [2012] NSWLEC 192 Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Mr Jonathon Deans and Ms Rosemary Laurens (Applicants) Mr Raymond Silverthorne and Ms Laure Silverthorn (Respondents) Representation: Applicants: Mr J Deans and Ms R Laurens (Litigants in person) Respondents: Mr A Thompson (Solicitor) Solicitors: Adam Thompson File Number(s): 129086 of 2017 judgment 1. COMMISSIONER: The applicants contend that trees growing on the respondents' adjoining property severely obstruct views from their Bellingen dwelling and sunlight to windows of their dwelling. They have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders which seek to reduce the trees to a height which will restore views and sunlight to what was available to them in July 2007. 2. In essence, the applicants claim that the contiguous growth of trees and shrubs on the southern, eastern and western portions of the respondents' property restrict views of the Dorrigo Plateau/ Great Dividing Range to the northwest of the respondents' dwelling and distant district views to the northeast of the respondents' dwelling from the upper floor verandah and belvedere (on the north-western corner of the verandah) and associated living room windows. In addition, they contend that the respondents' trees, in particular those growing in the mid-south-eastern portion of the respondents' property, block early morning winter sunlight (from sunrise until about 9.30 am) to north and east-facing windows of the upper and lower levels of their dwelling. 3. The respondents, through their solicitor, Mr Thompson, dispute the jurisdictional basis of the claim. 4. 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. The process is described in more detail in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122. 5. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge (s 14A(1)(a)), and if so, do they rise to a height of at least 2.5m above ground level (s 14A(1)(b))? 6. If the trees are trees to which Part 2A applies, the next key test to be satisfied 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. 1. The applicants have nominated 121 trees and shrubs growing on the southern, eastern and western sides of the respondents' property. The plants are identified on a detailed site plan and listed in a schedule; both documents are included in the application claim form (Exhibit A). There are additional unspecified trees and shrubs indicated on the plan. 2. During the on-site hearing, the trees were inspected from the parties' properties. 3. Trees denoted as T3-T7 are growing within the 6m setback from the street kerb and as such are located on land owned or managed by Bellingen Shire Council. Section 4(2)(a) of the Trees Act states that the Act does not apply to any land vested in, or managed, by a council. Thus these trees are beyond the Court's jurisdiction. The planting plan also identifies other trees on the heavily planted nature strip as being trees which otherwise obstruct views or sunlight. 4. A number of formally hedged/pruned shrubs growing between the respondents' driveway and their southern boundary (the parties' common boundary) have recently been pruned to a height of 2.3m. As such, this group of plants does not meet the jurisdictional test in s 14A(1)(b) and no consideration can be given to them. 5. There are several unpruned trees and shrubs to the west of the pruned shrubs and the boundary with council-owned land. These include two Pencil pines and other shrubs. I am not satisfied that these trees could be construed as forming a hedge; if I am wrong about the two pencil pines, I am not satisfied that they severely obstruct any view from or any sunlight to the nominated windows (s 14E(2)(a)). The Pencil pines are relatively widely spaced, have no impact on sunlight to the nominated windows and are peripheral to the view to the northwest. 6. Other particular trees in contention include at least three deciduous trees growing in the respondents' front garden to the west of the dwelling. The applicants contend that when the trees are in leaf, they block their views to the northwest of the Dorrigo Plateau. The trees, from south to north, are a Nyssa sylvatica (Tupelo) (T120), and two Crepe Myrtles (T1, T2). These trees are widely spaced at 8m centres and no not have interlocking canopies. With the horticultural and arboricultural expertise I bring to the Court, it is my opinion that the trees are best categorised as specimen trees and are not planted so as to form a hedge. Therefore, these trees are not trees to which Part 2A applies and no orders can be made for any interference with them. 7. The other trees of greatest concern to the applicants are the trees in the south-eastern portion of the respondents' property. In particular, concerns were raised on site about two Fiddlewood trees (T47 and T58). There are two trees in a very diverse and eclectic planting of native and exotic trees and shrubs. These are about 5.5m apart and separated by a Birch tree. Other nearby tallish trees include a Fig, Leopard Tree, and a Canadian Maple. Further to the northeast are taller trees growing on the property which adjoins the respondents' property to the east; these trees, which include two Alnus spp, (Alder) are in the field of view from the belvedere towards the northeast. As the Alders are not on the respondents' property they cannot be considered as part of this application. 8. 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. In Johnson at [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 some time before/after other trees could not have been planted so as to form a hedge with such trees as they were not in existence. 9. 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. As stated above, the only plants that may give this impression do not meet the height specified in s 14A(1)(b). 2. When asked, the respondents stated that the planting of the garden took place over a period of about 18 months following the clearing of their block. The clearing included the agreed removal of four large eucalypts growing on or close to the common boundary. An agreement signed by the applicants in 2005, regarding the removal of the four eucalypts, includes an in-principle agreement for the planting of replacement screen plantings by the respondents to remedy the loss of amenity caused by the removal of the trees. 3. I have heard and considered similar submissions made by the applicants that a contiguous canopy should be considered as forming a hedge (for example Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339). I find the argument of interlocking canopies to be insufficient in itself to meet the criteria of being 'planted so as to form a hedge'. Rather, the criteria considered in Johnson are more applicable. I am of the opinion that any one 'hedge' must be planted in a single event (see Coleman & anor v Leddy & anor [2013] NSWLEC 1094). 4. This is not the case for the majority of the trees the subject of this application. Given the wide spacing, the diverse range of species, the generally random arrangement of the trees in this section of the respondents' garden, and the extended planting period, I am not satisfied to the extent required by s 14A(1) that they are trees to which Part 2A applies. 5. Therefore, given the findings in regards to the trees on the respondents' property which are allegedly severely obstructing the applicants' views and sunlight, that none of those trees are trees to which Part 2A applies, the Court does not have the jurisdiction to further consider the matter. 6. Therefore, the only Order of the Court that can be made is: 1. The application is dismissed. ______________________ Judy Fakes 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: 21 September 2017