Background
Michael Buffier owned a Pacific Drive property at Fingal Bay with broad views including Fingal Bay beach, water, coastal landforms and bushland. Roger and Denise Ball owned a diagonally downslope property. After the Balls acquired and occupied their land in 2000, they developed a densely planted rear garden containing Bangalow, Alexander and Kentia palms, bottlebrushes and other vegetation.
Mr Buffier alleged that the trees increasingly blocked his beach view and sought removal or pruning orders under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW). He identified three alleged rows or hedges among the Balls’ trees. The Balls said the planting was a carefully designed multilayer garden intended to provide shade, privacy, cooling, habitat and amenity, not hedges.
The Court’s Holding
Acting Commissioner Douglas refused the application. The Court was not satisfied that any of the three nominated groups was planted so as to form a hedge, a threshold requirement under s 14A. The applicant had selectively grouped trees, omitted adjacent vegetation and bridged paths or separate garden beds to create apparent rows. The trees instead formed part of a diverse, curvilinear landscape garden.
The Court also found that, while the trees severely obstructed the particular Fingal Bay beach view, that view was only a small part of the applicant’s overall near-180-degree outlook. Considering the total available view, other vegetation and other continuing obstructions, the overall obstruction was moderate and did not meet s 14E(2)(a). In any event, the substantial loss of canopy, privacy, shade, habitat and temperature moderation from the proposed removals would outweigh the applicant’s interest in relief under s 14E(2)(b).
Key Takeaways
- Part 2A applies only to trees planted so as to form a hedge; amenity trees that happen to obstruct a view are not enough.
- Whether trees form a hedge depends on their arrangement, species, function and planting purpose, not a selective grouping of obstructing trees.
- View severity is assessed against the total outlook from the viewing location, not by isolating one valuable portion of it.
Why It Matters
The decision confirms the limited reach of the NSW high-hedges regime. A property owner cannot obtain Part 2A relief merely because a neighbour’s established garden has grown to affect a water view.
It also illustrates that even a valuable beach or water view may not satisfy the statutory severity test when it represents only a limited component of a broader outlook, particularly where the requested works would substantially damage the neighbour’s garden functions.