Armstrong v Delahunt & anor; McShane v Delahunt & anor

Land and Environment Court (NSW)|2013-11-20|Before: Mr J, Ms J

Judgment 1The applicants in these two proceedings own adjoining properties in Balgowlah Heights. They have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking, amongst other things, the removal and or pruning of a number of trees growing on the adjoining property to the west. 2The applications are made on the basis that trees on the respondents' property severely obstruct views of Middle Harbour from both applicant's dwellings. 3The matters were heard concurrently and commenced with an inspection of the trees from the respondents' property. 4In applications under Part 2A there are a number of jurisdictional tests that must be satisfied sequentially.

The assessment process 5Relevant to this matter, section 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 6Before considering the nature of the obstruction, the first jurisdictional test to be considered is s 14A. This requires that there must be two or more trees planted so as to form a hedge, and if so, are they at least 2.5m tall. The trees must be on appropriately zoned land. 7The Court's jurisdiction to make orders is found in s 14D. Relevantly, s 14D(1) states that the Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of a view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned. 8Section 14E(1) requires that the Court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated. This is not contested. 9The next relevant tests are in s 14E(2). This 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. 10Should the trees be found to be causing a severe obstruction of views from any of the nominated positions, section 14E(2)(b) requires consideration of a number of discretionary matters in s 14F. 11These jurisdictional tests must be satisfied sequentially before the Court's power to make orders under s 14D is engaged.

Are the trees planted so as to form a hedge? 12The trees the subject of the original applications are five Flowering or Evergreen Ash (Fraxinus griffithii), a Jacaranda and a dead wattle. The trees are growing on the northern portion of the respondents' large residential block (the block comprises two Lots). 13The Jacaranda is a mature specimen retained when the respondents built their dwelling in 2001. The tree presents as an individual specimen spatially separated from other trees. During the course of the hearing, it was agreed that this tree was no longer pressed as part of the application. Had it remained in play I would have determined that as an individual tree, it is not a tree to which Part 2A applies. While the Part does not apply to the Jacaranda, this tree is a useful reference point for other considerations. 14The dead wattle is part of the extensive planting of other tress and shrubs along the northern and western boundaries of the respondents' property. It is a single tree and therefore beyond the scope of Part 2A. 15The Ash trees are growing along the north-western boundary of the respondents' property. From south to north the trees are numbered 1-5. According to the first respondent's affidavit, Tree 5, identified on his garden plan as FA0, is an Ash planted in or around 2002. Trees 1-4 are identified as FA1 to FA4, which were purchased and planted by him in December 2009. 16It is worth noting that the northern boundary of the respondents' property is heavily planted with a range of established trees. There are other trees and large shrubs on the southern boundary of the adjoining property to the north. Collectively these trees form a dense canopy. 17At the hearing I observed T5 to be significantly taller and larger in trunk diameter than T1-4. The spacing between trees 1-4 was paced at about 2m between each tree. T5 is about 4m from T4. 18Mr Flaherty for the applicants contends that, regardless of when they were planted, as the trees are the same species and are linearly arranged, all five trees form a hedge for the purpose of the Act. Mr Christmas does not object to trees 1-4 being seen as planted so as to form a hedge. However, he maintains that T5 is not part of the hedge as it is much older and larger and spatially separated. 19I agree with Mr Christmas' proposition. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). At [28] His Honour states: 28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple past present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present. 20In Coleman & anor v Leddy & anor [2013] NSWLEC 1094, the finding in Johnston was applied to two distict planting events. 21In the matters before me, I find that trees 1-4 satisfy the requirement in s 14A(1)(a) but tree 5, despite being the same species, was planted as an individual tree some 5 years before the other trees. Therefore it is not part of the hedge and the Court has no jurisdiction to consider it. 22Trees 1-4 are all in excess of 2.5m, are on appropriately zoned land and therefore meet the criteria in s 14A of the Act.

Are trees 1-4 severely obstructing a view from the applicants' properties?

The Armstrong property 23Ms Armstrong purchased her property in November 2010. In her application she identifies three viewing locations: V1 - ground level, from beneath a deck; V2 - first floor deck and adjoining living room, dining room and kitchen; and V3 - second floor rooms at the rear of the dwelling. 24During the hearing Mr Flaherty stated that views from V1 and V3 were no longer pressed. Although V3 wasn't in issue, it was nonetheless helpful to observe the view from that level in order to determine what might be seen from the deck and living rooms below. 25The views in contention from V2 are of parts of Middle Harbour, across the Spit Bridge including the surrounding waterfront suburbs. The distant ridgeline and Chatswood are visible. 26Ms Armstrong contends that when she purchased the property she had the water views described above. A photograph taken in October 2010 from the deck shows a portion of water around the Spit Bridge. The water view is framed to the west by a hedge at the rear of the Armstrong property and the roof tops of properties below; well-established trees along the northern boundary of the respondents' property and the property to the north; and to the south, large Canary Island Date Palms on the Armstrong and respondents' property as well as the respondents dwelling. The views to the water are filtered through the then deciduous Jacaranda trees growing on the respondents' property. 27Ms Armstrong also relies in part on the real estate brochure describing the property she eventually purchased. The brochure lists "priceless harbour views" and "great harbour views". A photograph taken from the northern end of the deck shows glimpses of water behind the jacaranda on the respondents' property. 28A photograph taken for the purpose of the application shows the impact of trees 1-4 on that view. Little if any water can be seen in that photograph however I note that the Jacaranda is in full leaf. 29In his affidavit the first respondent included photographs he said were taken at the time of the open-house inspections of Ms Armstrong's property when it was on the market. These must have been taken earlier than stated as the Jacaranda is in full leaf and the respondents' garden has not been completed (no turf). His affidavit refers to landscaping works commenced in early 2009. However, despite the uncertain date on which they were taken, they are relevant in that the view from the deck shows little if any water can be seen through the Jacaranda and other trees beyond. More recent photographs taken on 31 October 2013 show glimpses of water beyond the Jacaranda, which is shown in full flower. 30At the hearing I observed small glimpses of water between some of the Flowering Ash and through the Jacaranda beyond, which at the time of the hearing was starting to leaf up after flowering and was therefore relatively open. 31In considering whether trees 1-4 are severely obstructing views of the water from Ms Armstrong's deck and adjoining living areas, I am prepared to accept that the trees do severely obstruct the limited water views available when the Jacaranda behind them is deciduous. Therefore, in putting Ms Armstrong's case at its highest I am prepared to consider s 14E(2)(b).

The McShane property 32Mr McShane has most recently lived on his property for the last 12 years; it is the original family home in which he grew up. This property is diagonally to the northeast of the respondents' property. 33The nominated viewing position is from the deck at the rear of the dwelling. A photograph apparently taken before the trees were planted but after the respondents' dwelling was built, shows water views across the Spit towards the southwest. Boats can be seen on the harbour. The principle view is through the Jacaranda. However, the Jacaranda is almost deciduous and other trees limit the view.

Discretionary matters 34 Determination of s 14E, and therefore the engaging of the Court's powers to make orders under s 14D, requires consideration of discretionary matters in s 14F. 35Relevant in the Armstrong case:

The trees were present when Ms Armstrong purchased her property but have grown to their current size during that time.
The main benefit to the respondents is that the trees are part of the landscape design, and apart from the general aesthetic amenity they provide, they screen a portion of the respondents' lawn and to some extent, the pool.
During the hearing, Mr Flaherty suggested that rather than remove the trees, his clients would agree to pruning to a height of about 2.5m. Neither party engaged an arborist to provide expert evidence at the hearing. However, Ms Armstrong included an Arboricultural Assessment Report prepared by Ms Margot Blues on 7 May 2013. The report is of little benefit in these proceedings however it states that without horticultural intervention view loss would be extended as the trees continue to grow. A reference to a nursery states that 'tip pruning' is suitable. The main recommendation of the report was that an application be made to the Court.
Of relevance, are things other than the trees to which the Part applies that may contribute to the obstruction. As noted in [26] there are many other trees and structures in the sight lines beside and beyond Trees 1-4.
In regards to the extent of the view, both legal representatives drew my attention to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. Mr Flaherty contends that the views are significant water views including views of the land/water interface and the Spit. He considers this position is supported by the applicant's photographs and the real estate brochure. The views are lost from the main living areas. He maintains the obstruction is severe. In terms of reasonableness he argues that if the respondents were concerned about privacy this should have been considered in the design of their dwelling. He also considers that privacy would be minimally affected by pruning the trees. Mr Christmas submits that the Ash have little if any impact on the water views. He contends that the views referred to in the real estate brochure are available from the upper level; these being views that could not be seen from V2 given its elevation.
In respect to other things that should be considered, Mr Christmas refers to Bowden & anor v Grayson & anor [2013] NSWLEC 1161 at [54]-[56] where the Court considered the intent of the review of the Trees Act and that it was not intended to enable a party to obtain a view (or sunlight) they didn't originally have the benefit of. Mr Christmas contends that this is the case with respect to the views from V2. 36In regards to the McShane property, the considerations with respect to other obstructions apply. In particular, the view is an oblique view across a side boundary. Apart from the Jacaranda, it appears that the view is principally obstructed by T5 with some obstruction by T4.

Armstrong property 37In regards to the alternative proposition to prune the trees, with the expertise I bring to the Court, reducing the trees from their current height (estimated in the Blues report to be 4-4.5m) to 2.5m would remove the majority of the foliage and would therefore have unacceptable consequences on the health, structure and appearance of the trees. I also agree that the respondents' privacy could be achieved with something smaller. 38However, after considering the evidence and the submissions, on balance, I am not satisfied that the applicant's interests in having the trees removed or pruned outweighs the undesirability of doing so. That is s 14E(2)(b) is not satisfied in the applicant's favour. 39I am not satisfied that any significant benefit would be obtained as the trees beyond the Ash, in particular the Jacaranda repeatedly referred to in this judgment and another Jacaranda with a Bougainvillea through it, located further to the west, as well as the palms and dense vegetation to the north, are the principle reasons that water views are not readily available from V2. These trees are beyond the scope of Part 2A. I agree with Mr Christmas that the significant water views available to the applicant, and highlighted in the brochure, are those from V3 and not V2. 40Therefore, as a consequence, no orders can be made for any intervention with trees 1-4.

McShane property 41While I'm satisfied that Mr McShane had more substantial water views when he resumed living on his property 12 years ago, the view is now principally obstructed by elements other than the trees to which this Part applies. For the same reasons given for the Armstrong property, I am not satisfied on balance that any orders can be made for any intervention with these trees.

Orders 42As a consequence, the Orders of the Court in matter 20624 of 2013 are: (1)The application is dismissed. 43In the matter 20625 of 2013, the Orders of the Court are: (1)The application is dismissed.

Judy Fakes 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: 27 November 2013

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