Land and Environment Court New South Wales Medium Neutral Citation: Harrison v Treasure [2018] NSWLEC 1190 Hearing dates: 17 April 2018 Date of orders: 17 April 2018 Decision date: 17 April 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: 1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; obstruction of views; trees are not planted so as to form a hedge; obstruction not severe; reasons not to interfere with the trees would outweigh those for making orders. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Johnson & ors v Angus & anor [2012] NSWLEC 1207 Johnson v Angus [2012] NSWLEC 192 Category: Principal judgment Parties: Lea Harrison (Applicant) Jane Treasure (Respondent) Representation: L Harrison, litigant in person (Applicant) J Treasure, litigant in person (Respondent) File Number(s): 17/379803 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Ms Harrison (the applicant) has lived at her Nimbin property since 2007. During that time she has enjoyed views from her dwelling – views that she says are now obstructed by trees on the neighbouring property owned by Ms Treasure (the respondent). Ms Harrison has asked Ms Treasure for the trees to be pruned, but has been unsuccessful, so has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for one tree to be removed and two trees to be pruned. 2. The hearing took place onsite, allowing observations of the trees and views. Both parties are self-represented and have not presented any expert evidence. I bring my own arboricultural expertise and experience to this matter. The situation 1. From her dwelling Ms Harrison has views to the north, including the valley around Nimbin, the distant ranges and Nightcap National Park. 2. There are many trees in the vicinity, including the three trees that are the subject of this application: * T1 - a cherry guava approximately 6 metres tall with a stem diameter of approximately 200 mm; * T2 - a mango approximately 8 metres tall with a stem diameter of approximately 750 mm; and * T3 - a mango approximately 7 metres tall with a stem diameter of approximately 400 mm. 1. Trees on Ms Harrison's property include a mango tree and a very large, mature Turpentine. 2. Photographs taken in 2007 and in 2018 show, to some extent, the growth of trees and changes to views over that period. Ms Harrison's submissions 1. Ms Harrison says the three trees form a hedge and that they severely obstruct views from three chosen viewpoints in her dwelling: the centre of her bedroom, next to her bed; the centre of her living area between a sofa and her dining table; and from the centre of her front deck. 2. Ms Harrison has undergone surgery several times in recent years. She describes herself as becoming increasingly disabled and is likely to require further surgery. The viewing points in her dwelling were chosen because she is housebound after any surgery and spends extended periods in her bedroom. Views from here are important, especially any views of activity. She values views of human activity near the township below, views of egrets and other animals. 3. As best she can recall, Ms Harrison thinks the trees were 2.5, 5 and 3 metres tall, respectively, in 2007 when she first came here, at which time she could view the distant ranges, people near the township below, and egrets and other animals in the valley. 4. Ms Harrison says these three trees have dense foliage, screening out any view, unlike her larger Turpentine that allows filtered views through its more open crown. She has read several decisions by the Court that suggest trees do not have to be of the same species, or planted at the same time, to be regarded as a hedge. 5. Ms Harrison says the previous owner of Ms Treasure's property allowed her to prune the larger mango tree (T2), despite Ms Treasure providing a recent statement from that person denying any memory of such an arrangement. 6. Ms Harrison filed a detailed timeline and history of events and discussions relating to these trees, other trees and plants in both gardens, the boundary fence and other matters. I have read all this material and addressed what is relevant under the Trees Act. Ms Treasure's submissions 1. Ms Treasure values her trees for the shade and amenity they provide. They are her only shade trees and they create a cool microclimate beneath their canopies, where she has established a garden of many plants. The trees are on or near a section of steeply sloping land where they help prevent erosion. The trees also provide fruit. Do the trees form a hedge? 1. In Johnson & ors v Angus & anor [2012] NSWLEC 1207, I explained at paragraphs 19 to 32 why a particular tree was not part of a hedge within the context of the Trees Act. An appeal to that decision was heard by the Court's Chief Judge. In Johnson v Angus [2012] NSWLEC 192, at paragraphs 19 to 29, Preston CJ discussed the meaning and intent of the phrase at s 14A of the Trees Act, which limits the jurisdiction of Part 2A to groups of two or more trees that "...are planted…so as to form a hedge". He concluded that this phrase not only requires the trees to form a hedge in the present, but also that at the time of planting the intent or purpose was to form a hedge. The planting must have been, and must still be, hedge-like. 2. If a person walked into Ms Treasure's garden and was asked to point out a hedge, I do not think it likely that they would point to these three trees. One of the traits of a hedge might be that it is expected to look like a hedge. I include two photos of the trees below, taken and tendered by me at the hearing. In each photo, the yellow arrows indicate T2 on the right and T3 on the left. 1. Ms Harrison made no submissions regarding the intent of those who might have planted the trees. I have estimated the trees' stem diameters earlier. The much larger mango tree T2 clearly predates the others and could not have been planted to form a hedge. There is nothing about the placement of the other two trees that would suggest they were later planted to form a hedge. 2. As I find the trees are not planted so as to form a hedge, it follows that Part 2A of the Trees Act does not apply to them, so I cannot make any orders to interfere with them and the application must be dismissed. The obstruction is not severe 1. Had I found that the trees formed a hedge, I would have to assess the degree to which they obstruct Ms Harrison's views. Although I have found there is no hedge, submissions were made regarding the trees' interference with views, so I shall consider this briefly. 2. I noted onsite that Ms Harrison still has expansive views to her north, even if she can't see particular elements that she might like. I accept her reasons for chosen viewpoints and for valuing the views. I also accept her contention that she pruned the larger mango (T2) with the consent of its previous owner. She seems honest and reliable and I see no reason to doubt her statements. 3. The larger mango (T2) can be seen in the 2007 photos. Ms Harrison has done her best to take recent photos from the same spot. Comparing these, I see minimal change in the height of T2, certainly less than the suggested 3 metres, so I do not accept that it was only 5 metres high in 2007. 4. Below is a photo I took from Ms Harrison's front deck at the hearing, with yellow arrows indicating crowns of the three trees: T1 on the left, T3 on the right and T2 between. 1. Although these three trees may obstruct a part of Ms Harrison's views that she would like to see, I do not accept that the obstruction is severe. Reasons not to interfere with the trees 1. Even if this obstruction could be regarded as severe, the reasons for not ordering any interference with the trees would outweigh any possible gains to Ms Harrison. Topping the mango trees would not be within the guidelines of AS4373, the Australian Standard for Pruning of amenity trees: it would severely damage their form and would leave large wounds likely to decay over time. The trees provide a high level of amenity to Ms Treasure and contribute to erosion control. Orders 1. Based on all of the foregoing, the application is dismissed. ____________________________ D Galwey 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: 19 April 2018