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This is the author’s version of a work that was submitted/accepted for publication in the following source: Griggs, Lynden & Low, Rouhshi (2012) Cutting down the Cypress leylandii, pittosporums, and cotoneasters on your neighbours’ land - the resolution of spite hedges. Australian Property Law Journal, 21(1), pp. 1-13. This file was downloaded from: https://eprints.qut.edu.au/54381/

c Copyright 2012 LexisNexis

Notice: Changes introduced as a result of publishing processes such as copy-editing and formatting may not be reflected in this document. For a definitive version of this work, please refer to the published source: http://www.lexisnexis.com.au/en-au/products/australian-property-lawjournal.page

Cutting down the Cypress leylandii, pittosporums, and cotoneasters on your neighbours’ land – the resolution of spite hedges.

Lynden Griggs & Rouhshi Low*

Abstract: Queensland, New South Wales, and the United Kingdom have enacted legislation that governs what are colloquially known as spite hedges. These are barriers, commonly horticultural, that once constructed, block the view or sunlight from a neighbouring property. The matter was also recently raised in the Tasmanian Parliament. This article examines whether legislation should be enacted to deal with this issue, and if so, what is the regulatory model that need be adopted. The conclusion is that a layered nuanced response is needed to balance the interests and obligations of neighbouring landowners.

“He said that the lower owner cannot obstruct the natural flow of surface water unless he can and does so in a manner which will not injure the upper land. On the contrary the law is, I think, that he may block it by any works on his own land, so far as they reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not recklessly of his neighbour so as to cause wanton damage to him. That, in my opinion, accords with the broad principles of the law of nuisance today, except perhaps in relation to what have been called ‘spite fences’. The law does, it seems, permit a man to block his neighbour’s view from mere malice and not for the better enjoyment of his own land.”1

“A shared geography underlies an intractable interconnectedness and dependence…These [neighbourly] bonds of co-operation are diminished when neighbours feel that they don’t accept or understand each other. People act on the basis of reciprocity. A sense that one has not been treated well or betrayed evokes resentment.”2

*

Respectively, Academics: University of Tasmania, Queensland University of Technology. Gartner v Kidman, (1962) 108 CLR 12, 46. 2 Renee Gastaldon, Dividing Fences and Dangerous or Intrusive Trees: The Draft Neighbourhood Disputes Resolution Bill 2010 (Qld), Queensland Parliamentary Library, e-research Brief 2010/25, p1, quoting from Mirko Bagaric, “Everybody needs good neighbours’, Courier Mail, 3 October 2007, p 32. 1

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Introduction The issue of spite hedges or spite fences and its impact on neighbourly relations, dramatically contrasted in the above quotes, was recently the subject of attention of the Tasmanian Parliament.3 This concern of the Tasmanian Legislative Council mirrored recent legislative developments in New South Wales,4 Queensland,5 and the United Kingdom.6 Indeed a community action group7 exists to seek reform of this area, arguing for some of regulatory control of hedges that block sunlight or views. In effect, legislatures and community groups are railing against the conservative common law principles of primacy given to the monopolistic landowner who argues that they can do as they please on their own land. This common law ideal endorsing a philosophical underpinning that landowners can perseverate that ‘my house is my castle’.8 In effect, spite hedges are, as the phrase suggests, barriers built or planted (such as the planting of the trees mentioned in the title) on or near the boundary that block the view or sunlight from a neighbouring property. The trees or structure may, though not always, be planted, constructed, or maintained out of malice, though in the United States, from where the phrase appears to originate, common law intervention can only occur where there is malice on the part of one landowner. A genuine, reasonable, and legitimate purpose for the hedge amounting to a persuasive defence in this jurisdiction. The purpose of this article, against a background of growth in the solar panel industry in Australia,9 the underlying economic value of a view as well as its aesthetic qualities for the landowner, and the increasing density within our suburbs, is to ask what is the appropriate framework, if any, that is suitable for the resolution of these disputes. Is it a case that good fences make good neighbours and the despotic dominion that one landowner has in respect of their own land entitles that person to prevail over a broader, but more nebulous model of societal obligation that should flow from land ownership. Is this broader public interest served by strictly enforcing the crystalline certainty10 of control over one’s land above, below, and laterally in the 3D image presented by the land ownership? What are the contrasting approaches currently adopted, and which would serve the nation as a whole? The emotion underlying these types of disputes cannot be underestimated. In 2000, a dispute over a Cypress Leylandii11 was seen as the reason for the murder of one of the landowners on which the hedge was constructed.12 Tragically, a similar ending occurred some three

3

“Problem Trees and Hedges”, Legislative Council Hansard, May 15, 2012, 1-22. Trees (Disputes between Neighbours) Amendment Act 2010 (NSW). 5 Neighbourhood Disputes Resolution Act 2011 (Qld). 6 Anti-Social Behaviour Act 2003 (UK). 7 , last accessed June 28 2012. 8 The phrase deriving from the work of Sir Edward Coke, The Institutes of the Laws of England, (1628). 9 Solar accounted for 0.1% of total electricity generation in Australia in 2009-10 but has grown by 21% a year on average over the past five years. From 2001-2009, 86,000 solar panel systems were installed with a combined capacity of 123 megawatts. In 2010 there were over 158,000 solar panel installations with a combined capacity of 305 megawatts. Indeed the strongest growth in renewable energy production in 2009-2010 occurred in solar-powered electricity generation. See Department of Resources, Energy and Tourism, Bureau of Resources and Energy Economics, ‘Energy in Australia 2012’, February 2012, p49. 10 See Carol Rose, “Crystals and Mud in Property Law”, (1988) 40 Stanford Law Review 577. 11 The Cypress Leylandii is an evergreen tree popular in the United Kingdom that can grow to a height of 15 metres in 16 years. 12 http://www.telegraph.co.uk/news/uknews/1347205/Gardener-is-shot-dead-in-hedge-feud.html, last accessed June 28 2012. 4

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years later with the perpetrator later committing suicide in gaol.13 One United Kingdom owner has also endured a 24-year legal battle to have a hedge trimmed.14

Common law resolution Despite an intuitive feel that disputes of this nature would be relatively common, and the publicity surrounding this issue extensive,15 in Australia very little case law has examined the matter. One suspects that the cost of litigation would rarely support the economic advantages that may flow from a neighbour succeeding in challenging the status quo, and if relations between adjoining landowners become so intense and contraire, the remedial option of selling would become more attractive.16 However, in an analogous situation in the Western Australian Court of Appeal in Evans v Miller17 a landowner sought to enforce a restrictive covenant that restricted the height of buildings on the neighbour’s property. The neighbour’s retaining wall, above ground spa, and surrounding fences were above the height restriction, with the neighbour arguing that as the applicant had purchased with knowledge of the structures in place, they were seeking to gain an advantage they never had. The court granted a mandatory injunction requiring the lowering of the structures. The restrictive covenant was to be enforced. By contrast, to the dearth of common law authority in Australia, the matter has been extensively examined in the United States of America. With due respect and acknowledgement towards the state based resolution of these issues in this nation and the recognition of individual nuances between states, the law can be summarised that a United States citizen is entitled to construct a building on her or his own land to obstruct or deprive the adjoining landowner of light, air, or a view.18 However, a landowner cannot maliciously erect a structure with the purpose of depriving the view of the neighbour, particularly where no useful purpose is served by the structure.19 Legislative intervention has also followed, reflecting this common law development, which sees a statutory prohibition against the erection or maintenance of spite fences if done so with malice and intent to injure or annoy an adjoining landowner.20 The courts have liberally interpreted provisions such as this, so that plants that would not be considered horticulturally as a hedge plant can still be under the prism of common law interpretation of the legislation.21 Today, in the United States, “the spite

13

http://www.dailymail.co.uk/news/article-1310011/Hedge-wars---evergreen-battles-make-good-neighbours-turnnasty.html?ito=feeds-newsxml, last accessed June 28 2012. 14 Ibid. 15 For example in Queensland, the topic was one that the daily media would routinely address. See the discussion of this in the Gastaldon paper, above n 2. 16 As Justice Young opined in 1994, ‘Fortunately, this type of activity [the construction of spite hedges] has not, to date, been rife in Australia, though occasionally, one gets close to this sort of area.’ (referring to Hilderbrandt v Stephen [1964] NSWR 740 where a restrictive covenant on land prevented any building being constructed. A land owner constructed a fence around a tennis court, the court ruling that this was not a building within the meaning of the covenant. The Honourable Mr Justice Peter Young, “Some Thoughts on Fences,” (1994) APLJ Lexis 8, 12 of online version. 17 [2011] WASCA 89; BC201101876. 18 1 Am Jur 2d Adjoining Landowners §102. 19 1 Am Jur 2d Adjoining Landowners §108. See authority such as Burris v Creech 220 N.C. 302 (1941); Burke v Smith 37 NW 838 (1888); Kirkwood v Finegan 55 NSW 457 (1893); Haugen v Kottas 307 Mont. 301 (2001). 20 1 Am Jur 2d Adjoining Landowners §109. 21 Dowdell v Bloomquist 847 A.2d 827 (2004), where the plant in question a row of arborvitae trees.

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fence doctrine is a well-established nuisance law rule…Modern courts generally hold that a spite fence is a nuisance, for which the offended neighbor can obtain injunctive relief and damages.”22 In the absence of such developments in Australia, and the author’s view is that the matter is too pressing to wait for the minimalist, incremental, glacial like approach of judicial evolution, the argument will be made that legislative or regulatory intervention is necessary. Indeed the incapacity of the common law to respond effectively was noted with some prescience 15 years ago by the New South Wales Law Reform Commission where, in its report on neighbours,23 noted that “In the United States, there is some movement towards courts recognising that blocking sunlight to a solar collector may be a nuisance, but it seems unlikely that Australian courts will follow this lead.”24 “The common law does not reflect the evolving importance to society of access to sunlight and views. The common law of nuisance is of very little use to a neighbour trying to prevent a tree from causing damage. This means that a minor dispute that could be resolved by the inexpensive removal of a small tree is likely to become a major dispute in which property damage has occurred and will continue to occur unless huge amounts are spent to remove what has become a very large tree.”25

Neighbour Law26 – our starting point for analysis Our beginning starts with each individual lot of land. Each folio of the register or certificate of title or ownership based on deeds is a representation in some way of a discrete parcel. Unlike the doctrine of fragmentation of proprietary rights with physical reality a mere illusion, the parcel of land can be seen, held, traversed, and covered. It is “not an abstraction.”27 As previously noted, is the fundamental foundation of land law the monopolistic, exclusive, and dominant control of land ownership, an idea that permeates with no commitment, or notion of community to the adjoining owners. This idea suggests that subject to statutory and regulatory controls through planning schemes and local council imperatives, each person is entitled to do, plant, construct, as they like. The impact on the neighbour irrelevant and meaningless. Each landowner a stranger vis-à-vis their neighbour.28 While this “traditional liberal model may well be a caricature of ownership …that does not make it less influential.”29 This form based around elements of the right of exclusion, permission needed for access, compensation paid where property is seised without compensation, and agreement based limitations reflected by the law of private servitudes.30 It is a policy that says that the community is favoured by a individual, inward looking protection of rights. It disavows or weakens any notion of obligation. 22

James Charles Smith, “Some Preliminary Thoughts on the Law of Neighbours, (2012) 39 GA. J. Int’l & Comp. L. 757, 772. New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report 88, 1998. Above n 23, [2.10]. 25 Above n 23, [2.21]. 26 It can be noted that Australia does not have a discrete body of neighbour law, unlike, for example, South Africa and Scotland. See Smith, above n 22, 759. 27 Smith, above n 22, 758. 28 Smith, above n 22, 761 describes this as the stranger model of resolution. 29 Helena R. Howe “Copyright limitations and the stewardship model of property”, (2011) 2 I.P.Q. 183, 186. 30 See the discussion in Helena R. Howe “Copyright limitations and the stewardship model of property”, (2011) 2 I.P.Q. 183, 188-189. 23 24

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By contrast, should the reality brought about by interdependence through physical proximity, yield, as the neighbour principle in tort law did, to an understanding that each landowner has a sense of mutual expectation, trust, and obligation towards their neighbour – a friend model underlying community spirit.31 Are we, as Kevin Gray persuasively argues, to adopt a model whereby “ownership of land is comprised of limited rights of use and exclusion, which are circumscribed by community-orientated responsibilities,”32 a philosophy that appears reflected in the recent legislative changes governing spite hedges on the eastern seaboard of Australia.

Solutions from Elsewhere Putting aside this divide between society and the individual, the public and the private, the libertarian and the communitarian Baker33 suggests, in seeking to have these disputes resolved primarily between the neighbours themselves, that a legally recognised pre-statement guideline should be promulgated in some way. This would give primacy to the use that first existed, with this supplemented by an examination of which use required something to occur, or not to occur on neighbouring land, for the use to take place successfully.34 So for example, where solar panels are put in place by a landowner with them blocked by a pre-existing tree, the tree would have priority, being in situ earlier in time. However, where the solar panels are installed before a competing structure, and require something not to occur on the neighbouring land (such as the planting of a species of tree that would shade the panels); the solar panels prevail. The basis of this is not only that they were first in time, but the first in time will, if well-established, trump that something has to occur on the adjoining land (i.e. that the shading trees would not be planted).35 By distinction to this approach, which relies somewhat on the goodwill of neighbours, Fennell36 turns to the economic market and seeks a demand/supply driven solution. She suggests that a trading platform for land use options be created. The example presented by the author37 to illustrate this involves one landowner planting a row of young sequoia trees many years ago. Neighbours have moved in and installed solar panels. After a period of some years, the sequoias now shade the solar panels. The parties seek to bargain, but one or both parties may be inflexible and refuse to compromise, and any attempt to resolve through litigation is expensive, unwieldy, and involves high costs. The answer proposed is for the local city to purchase the options to control the right to have a solar easement and negotiate with its residents. As Fennell comments in the context of the contemporary role of land as part of our discourse of the law:

31

Smith, above n 22, 762. Helena R. Howe “Copyright limitations and the stewardship model of property”, (2011) 2 I.P.Q. 183, 203, referring to K Gray and S Gray, Elements of Land Law, 2009, pp 111-114; K Gray, “Equitable Property”, (1994) 47(2) Current Legal Problems, 157, 189. 33 R. Lisle Baker, “My Tree versus Your Solar Collector or your Well versus My Septic System? – Exploring Responses to Beneficial but Conflicting Neighboring Uses of Land”, ( 2010) 37 B.C. Envtl. Aff. L. Rev. 1. 34 Baker, above n 33, 35. 35 Baker, above n 33, 37-38. 36 Lee Anne Fennell, “Property and Precaution”, (2011) 4 J. Tort L. 1 37 Fennell, above n 36, 23. 32

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“It does no good to insist that property maintain a pristine standardised form on the outside if it will be gutted from within. If we wish to keep property alive as a distinctive concept, it must be able to respond more sensitively and flexibly to competing, spatially sensitive demands. That means looking behind the ‘keep off’ signs to recognize and price the incursions into flexibility that underlie the message.” Relying less on the economic intervention through the market, and more on public hand of government Kapnoullas suggests, specifically in the context of solar power, that for Australia, legislation is required to clarify and allow for the creation of solar easements.38 In noting that the purchasers have a “justifiable fear of lost investment”, given a payback time of between 4 and twenty years,39 she considers that legislation be enacted to allow solar access easements based on a mathematical formula, (such as in California where legislation restricts shading on a collector area to no more than 10% between the hours of 9am to 3pm), and that these solar easements be enforceable in law level administrative tribunals.

The Response to Date

United Kingdom The UK response to this problem lies in Part 8 of the Anti-Social Behaviour Act 2003. Emanating from a consultation paper delivered in 1999, which saw in excess of 3,000 responses. A majority of some 85% argued in favour of a law regulating high hedges.40 The legislation states: 65. Complaint to which this Part applies (1) This part applies to a complaint which – (a) is made for the purposes of this Part by an owner or occupier of a domestic property; and (b) alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

High hedge is defined (s66) to “mean so much of a barrier to light or access as – (a) is formed wholly or predominantly by a line of two or more evergreens; and

38

Anna Kapnoullas, ‘The Ideal Model for Solar Access Rights’ (2011) 29 EPLJ 416. Ibid, 417, 417 40 As noted in Nicola Padfield, “The Anti-Social Behaviour Act 2003: the ultimate nanny-state Act?”, (2004) Criminal Law Review 712. 39

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(b) rises to a height of more than two metres above ground level. The legislation then provides for a process whereby a complaint can be made to a local authority (s68) with that authority able to issue remedial notices, though any such notice cannot require the hedge to be clipped to a height lower than two metres. (s69). The remedial notice operates as a local land charge and binds any person who is an owner or occupier of the land. The legislation provides for an appeals mechanism (ss7173), and for enforcement powers (ss75-78).

New South Wales The New South Wales legislation commenced in August of 2010 and amended the Trees (Disputes between Neighbours) Act 2006. Part 2A applies to a group of two or more trees that are planted to form a hedge and which rise to a height of at least 2.5 metres (s14A). Section 14B provides: “An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.”

A person seeking an order under this legislation must give the adjoining landowner 21 days of the lodging of the application (s14C), with the jurisdiction of the Land and Environment Court allowing them to make orders requiring specified action to remedy the obstruction of sunlight or a view, or indeed to remove the trees and to replace with a different species (s14D). Costs can also be recovered (s14D(h)). Before making the order the Court must be satisfied that the applicant has made a reasonable effort to reach agreement (s14E). In its jurisdiction to make an order the Court is to consider a wide array of matters including the location of the trees; whether the trees existed prior to the dwelling the subject of the application; whether the trees grew to a height of greater than 2.5 metres during the period the applicant has owned the land; whether the trees have any historical, cultural, social, or scientific value; the contribution the trees make to the local biodiversity; the intrinsic value of the trees to public amenity; the amount of sunlight lost as a result of the obstruction; whether the trees are deciduous; the nature of the view and extent of any view affected by the obstruction; and any other such matter the court considers relevant (s14F). A council or Heritage Council is entitled to be heard under these proceedings (s14G). Successors in title are bound by the orders (s 16). Interestingly, the relevant Minister is to determine whether the policy objectives of the Part remain valid, with such review to occur as soon as possible after 2 years from commencement (s 14I).

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Queensland Legislation The Queensland Neighbourhood Dispute Resolution Act 2011 (Qld) commenced on 1 November 2011, replacing the Dividing Fences Act 1953 (Qld). Relevant to this paper is Chapter 3 of the Act which deals with trees.41 It places responsibility on the ‘tree keeper’42 to ensure that their neighbour’s43 land is not affected by a tree growing on the tree-keeper’s land (ss 41 and 52). Under s 46, land is affected by a tree if any of the following applies: 

branches from the tree overhang the land;



the tree has caused, is causing, or is likely within the next 12 months to cause— 

serious injury to a person on the land; or



serious damage to the land or any property on the land; or



substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.

Whilst there is no specific mention of the blocking out of sunlight in s 46, it was recognised in the explanatory notes that there can be obligations as to views and light that might be demonstrated to interfere with the use and occupation of the land.44 The explanatory notes further provide that45: ‘[E]xamples of what might constitute unreasonable interference may include blocking of sunlight to solar panelling, blocking of light which causes mould growth in the home, or interruption to satellite reception’ Where a neighbour’s land is affected by a tree, the tree-keeper and neighbour are encouraged to resolve the matter informally (s 60). If this is not possible, the neighbour may exercise the common law right of abatement or apply to the Queensland Civil and Administrative Tribunal (QCAT) for resolution of the issue (s 60). Section 61 gives QCAT the jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that land is affected by the tree. The neighbour must give the tree-keeper a copy of the application 21 days before the day that the application is to be heard by QCAT (s 63). The orders that QCAT may make are provided for in s 66, including an order to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land: s 66(2)(b)(ii). Where the interference is an obstruction of sunlight, s 66(2)(b)(ii) only applies if the tree rises at least 2.5m above the ground and the obstruction is a severe obstruction of sunlight to a window46 or roof of a dwelling

41

The word ‘tree’ is given a wide definition under the Act: see s 45. A ‘tree-keeper’ is limited to holders of the property interests specified in s 48, such as the registered owner of the land on which the tree is situated and the lessee of the land on which the tree is situated: s 48. 43 A ‘neighbour’ includes persons such as the registered owner of the land affected by the tree or an occupier of the land: s49. 44 Explanatory Notes, Neighbourhood Dispute Resolution Bill 2010 (Qld) p28. 45 Explanatory Notes, Neighbourhood Dispute Resolution Bill 2010 (Qld) p32. 46 ‘Window’ is defined as including a glass door, window forming part of a door, skylight or other similar thing: s 66(6). There is no explanation of what ‘severe obstruction’ means, either in the Act or in the explanatory notes. 42

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on the neighbour’s land: s 66(3).47 Matters that QCAT may consider when making its order include steps taken by the tree-keeper or the neighbour to prevent or minimise interference and for interference that is an obstruction of sunlight, any contribution the tree makes to the protection or revegetation of a waterway or foreshore (s 75). The Act also requires QCAT to be satisfied of certain mattes before it can make an order under s 66, such as the neighbour having made a reasonable effort to reach an agreement with the treekeeper and the neighbour having taken all reasonable steps to resolve the issue under local laws (s 65).

Victoria Victoria has opted for a non-legislative model to resolve disputes between neighbours, with the procedure offered not restricted to high hedges, nor did it evolve specifically to address this problem. Disputes Centre Victoria48 provides a no-cost mediation service to assist neighbours warring over trees, views, sunlight, as well as other matters. The following case example is taken from their website49:

Maria called the Dispute Settlement Centre of Victoria (DSCV) after her neighbour added an extension to ¾ of the dividing fence. She said the extension, which increased the height of the fence by 60cm blocked light for her garden and hindered her view of the street. Maria's husband Rick agreed with what they were doing because he thought the neighbours were going to put up a trellis with roses. The assessment officer organised a mediation date at a venue not far from Todd, Liz, Rick and Maria’s street. The mediation went for over three hours. When it came time to talk about the fence, Todd was reluctant to pull down the extension, which he had just installed at great expense. Rick offered to reimburse him for the materials and help install a trellis as originally proposed. In the end, Todd agreed to take down the extension and give the material to Rick to use to fix a shed. They also agreed to pay 50/50 for a trellis on top of the fence instead.

47 The Act makes clear that despite s 178 of the Property Law Act 1974 (Qld), QCAT may make an order under s 66 that is intended to result in the access of light to land: s 66(4). Section 178 provides: From and after 1 March 1907, no right to the access or use of light or air to or for any building shall be deemed to exist, or to be capable of coming into existence, merely because of the enjoyment of such access or use for any period or of any presumption of lost grant based upon such enjoyment. 48 last accessed June 28 2012. 49 http://www.disputes.vic.gov.au/case-study-fence-dispute, last accessed June 28 2012.

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What Model to Adopt There is no doubt that at its core, property ownership gives the right of access and a right to exclude. Its starting point is the owner of land has the capacity to exercise unfettered discretion as to what they can and cannot do on that land. However, we know that modern land ownership is rather more constrained. All tiers of government impose restrictions. As Fennell notes, a quote worth repeating in full: “Property, alone among entitlement types, delivers a hefty dose of personal control over a chunk of space for potentially unlimited span of time. Its accompanying veto power makes ownership incomparably valuable and uniquely hazardous. While this power makes possible a wide range of projects and endeavours, it also makes the rest of the world vulnerable to the ways in which that power may be deployed. Often the resulting collisions between power and vulnerability are efficient, but sometimes the power that property conveys is superfluous, of little or no value to owners, but highly threatening to the potential projects of nonowners…. Keeping the models limited and the doors locked will indeed keep property legible and distinctive, but it may also consign it to irrelevance as the realm of governance grows ever larger and the role of exclusion shrinks.”50

Spite hedges are one such example of collision between power and vulnerability. The capacity of the landowner to plant a species of tree that can block the sunlight or view of the adjoining landowner without seeking to gain an advantage, (apart from privacy) is, in many jurisdictions, unfettered. But why would a person do this? Three reasons could plausibly be presented.51 First, the landowner planting the hedge may do so for privacy or for some reason that is justifiable to her/him. In essence, there is a reason for so doing – whether that reason increases the value of the land is irrelevant. Second, the landowner may plant the hedge to spite or act maliciously, or for some objectively unjustifiable reason towards the neighbour. Perhaps there is a tangential dispute and the relationship between the neighbours has become sclerotic. Third, as noted by Stern, the landowner planting the hedge may do so to take advantage of the monopoly that he/she enjoys over their land, and to extract a payment from the neighbour as consideration to remove, or not plant the hedge.52 The latter reason is, in the view of Stern, the only logical justification for legislation that would prohibit spite hedges.53 All other bases have no economic justification, but the economic analysis here fails to take account, as the author notes,54 of the ethics of building something to inflict pain. The first economic basis recognises a value to the landowner of building the hedge that outweighs the cost. The second – “so long as the fence builder receives great pleasure from inflicting pain on his neighbour, even a fence built out of spite is not inefficient – unless for some reason this type of

50

Fennell, above n 36, 62. As noted by Stewart E. Sterk, “Neighbours in American Land Law”, (1987) 87 Colum L. Rev. 55, 83-84. 52 Sterk, above n 51, 84. 53 Ibid. 54 Ibid. 51

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pleasure ‘doesn’t count’ – an ethical decision, not an economic one.”55 The third basis is similarly unlikely to be adopted on objective economic grounds. The mere threat of construction is likely to extract the payment, as the neighbour will be aware that no remedy is available to prevent construction. So if economics is not the answer, then we must look to equity. Is there a problem for which intervention is justified, and if so, how do we intervene? The suggestion the authors make is that intervention is necessary. Without some dispute resolution mechanism in play, the amenity that one enjoys in their locale is seriously undermined. We argue that the values the community attaches to amenity, the emotional and economic worth of an aesthetically pleasing view and the economic and social significance of renewable energy make it imperative that a dispute resolution mechanism be enacted. The mantra of economics must yield to equity. Fairness of outcome and intergenerational benefits across successors in title is what we seek to achieve. But how do we achieve this? What might be equitable when we have to distribute the costs of preventing a monopolistic landowner from utilising the land in the way that he/she sees fit? Our starting point, with arguably our views not deviating from underlying economics, is that the person that receives the benefit should bear the cost of something that intrinsically will benefit them individually; though one could suggest that the benefits of spite hedge legislation will benefit the community more widely (ie. greater use of solar panels for the generation of electricity will lead to a reduction in carbon outputs). The second point is that if the community does benefit, the landowner who now sees the usage of their land restricted should receive something in return. Our solution, and working from the basis provided by Gunningham and Sinclair,56 identifies five criteria to guide any remedy. First, any solution must be efficient in terms of cost-effectiveness. The benefit must outweigh the costs. Second, the solution must allow the parties to transact to resolve the matter – this being the lowest cost solution to any dispute between the bilateral monopoly that is neighbourly relations. Third, the parties that benefit; the community at large, and the respective individual landowner, must bear the costs. Fourth, the policy response must be layered, responsive, and adaptive so that policy instruments that fail can be modified to succeed. Fifth, the response must be phased, and able to move responsively to the necessary tier that will succeed. As noted by Gunningham and Sinclair, “A further benefit of a phased approach is that by sequencing the introduction of policy instruments, we can enjoy the benefits of regulatory pluralism without degenerating into a smorgasbord approach, or worse, counterproductive instrument clashes. Thus one can begin with less interventionist instruments, and positive incentives, recognising that volunteers may respond more sympathetically than conscripts.”57 The authors believe that the first step in this phased response is the enactment of legislation in all jurisdictions along the lines of NSW and Qld to provide a statutory framework for remedial response that 55

Ibid. Neil Gunningham and Darren Sinclair, “Policy Instrument Choice and Diffuse Source Pollution”, (2005) 17(1) Journal of Environmental Law 51. 57 Ibid, 76. 56

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can be used urgently. Second, governments need to appropriately fund dispute resolution centres of the type established in Victoria to assist neighbours resolve these matters. While beyond the scope of this article to examine the economics of such centres, the belief of the authors is that any such quantitative analysis would yield a conclusion that centres of this nature provide a superior outcome to relying on the more expensive, less time sensitive option of formal legal action. This phase could also include appropriate education and dissemination of information to encourage greater public awareness about the values of solar access rights and access to sunlight and the community interest in protecting this. Third, local authorities must explore the option of a trading market in solar easements or views that can achieve generational change over a long period to resolve this issue. Finally, planning schemes need to be urgently updated to take account of the increasing importance of solar power and of views in an increasingly dense urban jungle.

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Our suggested staged response is represented in the table below. Response

Aim

Examples

Phase 1: Legislation

Provide a statutory framework for

Neighbourhood Disputes

remedial response such as mandating size,

Resolution Act 2011 (Qld)

placing responsibility on tree owners to

Trees (Disputes between

maintain trees, requirements for informal

Neighbours) Act 2006 (NSW)

dispute resolution and penalties for failure to comply. Phase 2: Encourage

Encourage residents to resolve

Dispute Resolution Centre

voluntary self-help

neighbourhood disputes informally via

Victoria

mediation centres and education as to the value of sunlight and solar access. Phase 3: Trading

Establish a trading platform where local

Solar easements could be

platform for land use

governments purchase land use options

accessible via a permits system,

options

such as solar easements and bargain with

with local councils given the

its residents.

authority to manage and administer this system. Permits can define proposed easements in terms of dimension and angle. Easements that are created can be registered on the title of both properties.*

Phase 4: Update

Recognise increase urban density and

Solar access boards or local

planning legislation

importance of renewable energy such as

councils invested with the

solar.

authority via legislation to regulate solar access.*

*These suggestions were obtained from A Kapnoullas, ‘The Ideal Model for Solar Access Rights’ (2011) 29 EPLJ 416, 435- 444.

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Conclusion Australia's estimated resident population reached 22.62 million at 30 June 2011, increasing by 320,800 people since 30 June 2010. This is an annual growth rate of 1.4%, with inner-city areas, outer suburbs, urban infill areas and coastal areas experiencing higher population growth than other areas.58 Greater urbanisation and housing density will inevitably lead to an increase in interaction between neighbours on a variety of issues, such as trees, fencing, noise, and street parking.59 More importantly, because neighbours can be friendly or hostile, distant or close, relationships between neighbours will never be static or predictable. 60 Given the current inadequacies of the common law in relation to neighbourly disputes, state governments can no longer afford to be oblivious to this issue and must act to provide a suitable statutory framework governing neighbourly relations. Legislation should be enacted to clarify neighbourly responsibilities, particularly on pressing issues such as trees and fences, with the aim of encouraging neighbours to resolve these disputes informally. But instead of stopping there, State governments should look ahead to the use of solar energy and solar access rights, because this issue will become increasingly important in the future.61 How solar access rights can be managed will need to be addressed. The authors agree with the views put forward by some academics that current planning legislation needs to be updated to regulate solar access rights including creating a platform whereby such rights can be traded. In terms of spite hedges and neighbourly relations, Queensland and New South Wales have progressed in the right direction. The authors hope to see similar movements in the other States and Territories in Australia.

58

Australian Bureau of Statistics, Regional Population Growth 2010-2011, 30 March 2012 (cat no. 3218.0). Robert C Ellickson, Order without Law: How Neighbours Settle Disputes Harvard University Press: Cambridge London, 1991), 271. 60 Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010, p1. 61 The Australian Government’s Clean Energy Future plan, which was passed in 2011, is an indication of the growing role clean energy technologies will play in Australia’s future. The Australian Government is targeted at investing over $13 billion in clean energy projects: Australian Government, ‘An Overview of the Clean Energy Legislative Package’ accessed 1 August 2012. This includes the establishment of the Australian Renewable Energy Agency for the purposes of improving the competitiveness of renewable energy technologies and increasing the supply of renewable energy in Australia: Australian Government, Department of Energy Resources and Tourism, ‘Australian Renewable Energy Agency,’< http://www.ret.gov.au/energy/clean/arena/Pages/arena.aspx> accessed 1 August 2012. 59

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