Do the trees severely obstruct a view?
6Mr Alameddine values the view of the canal that passes to the rear of these properties and the view further afield to the Georges River. He says the trees obstruct these views from the rooms at the back of the house on the lower level and from the outdoor terraces. Viewpoints V1, V2, V3 and V4 are through the sliding glass doors of the family room; V5 and V6 are through sliding glass doors of the dining and kitchen area; V7 is through a kitchen side window; and V8 is from the rear balcony. He says the views from the terrace below the rear balcony are also obstructed. He says his children's safety is compromised as he can no longer see them playing in the water from his seat in the lounge.
7I observed the following. From V1, V2, V3 and V4 trees T1-T10 partially obstruct a view of the Georges River. They do not entirely obstruct this view. The trees cause little obstruction through the side kitchen window (V7). From the other viewpoints (V5, V6 and V8) trees T1-T10 almost entirely obstruct the available view of the Georges River and partially obstruct the view of the canal.
8The trees obstruct views from the terraces below the balcony but I note that these are not part of the dwelling and so are not included in s 14E(2)(a)(ii).
9The process of assessing view loss in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 provides useful guidance here. In that matter, Roseth SC adopted a four-step assessment process, as below.
(26) The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
(27) The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
(28) The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
(29) The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
10I note that the view of the Georges River is a valuable view, though not iconic. Trees nearer the dwellings (T1 to T10) cause an obstruction of the view of the Georges River from the dining and kitchen areas and the balcony outside there. The river is only a part of the wider view, which is not entirely obstructed. Other parts of the view, such as the canal, are only partially obstructed, and parts such as the more distant landscape and sky are not obstructed at all. The view obstruction occurs over the side boundary.
11I find that, although parts of the entire view can still be seen, a significant part of that view is now obstructed, from high-use living areas of the applicant's dwelling, by trees T1 to T10. It would be reasonable to regard this as a severe view obstruction from those points. Trees T11 to T21 do not cause any severe obstruction of the view from the dwelling, as they block only a small part of the view of the canal and do not obstruct river views. Mr Alameddine pointed out that they block views from his terraces, but these are not part of the dwelling.
12The Jones emphasised that they require the privacy provided by the trees. It appears that their privacy could be maintained even if the trees were pruned enough to restore, partially, the views lost. The parties have each proposed suitable heights to which the trees should be pruned. The most suitable height will be determined below. However I conclude that some pruning is possible and would indeed be desirable, to remove and restrain the view obstruction caused by the trees. Therefore the test at s 14E(2)(b) is also satisfied and I can make orders as I see fit after considering the matters in s 14F.