Ball v Bahramali & Anor

CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140

APPLICANT Mr R Ball [agent]

LEGAL REPRESENTATIVES: RESPONDENTS Mr J Gerathy [solicitor] SOLICITORS Shaw Reynolds Bowen & Gerathy

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: This is an application made under s 14 Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made the owner of a property in St Ives against the owners of two hedges growing on adjoining land. 2 The applicant was represented by her son, Mr R. Ball and the respondents were represented by Mr J Gerathy, solicitor.

3 The applicant is seeking the reduction and ongoing maintenance of the hedges to a height of 2.5m to be undertaken by the respondents at the respondent's expense. The applicant contends that the hedges severely obstruct three nominated views from the dwelling and severely obstruct sunlight to ten windows of the dwelling.

4 The respondents value the hedges for the privacy they afford and do not want them pruned. However, if required to do so by the Court, the respondent's alternative orders are to reduce the trees to a height of 7m at the initial expense of the applicant with the maintenance thereafter undertaken by the respondents.

5 The hedges are two rows of xCupressocyparis leylandii Leighton Green (Leyland Cypress). Hedge 1 is a row of 13 trees along the generally eastern boundary of the respondent's property. The other is a row of 8 trees on the southern boundary. The hedges are approximately 13m high.

6 The affected windows are on the north-western portion of the rear of the applicant's property. Windows W1-W3 are on the north-western side of a family/lounge room. There are no substantial eaves on this part of the house. One of the nominated views, V1, is associated with W1 and W2.

7 W3 includes the glass top of a door. W4 and W5 are on the western return of this portion of the house in a dining area attached to the kitchen. The eaves and guttering outside these windows extend approximately 760mm from the wall of the house. There is a retractable canvas awning on W4.

8 W6 -W10 also face north-west. The eaves and guttering on this section extend 860mm from the wall. W6 is the glass top of an external door from the laundry. W7 is a laundry window. W8 is a frosted window of the bathroom. W9 is the window of what has been used as a study but could be a bedroom. W10 is a second bedroom. View 2 (V2) is from the study to the north-west through W9 and V3 is through W10 generally to the north-east.

9 The boundaries between the properties are not simple. The respondents' property angles into the applicant's property. At its closest, hedge 1 is 6.5m from the applicant's property at the point of convergence of the respondents' property.

10 The hearing commenced with a site view. The hedges were viewed from both properties. It was noted that there was a discrepancy in the location of north on the diagram that accompanied the application. The north point was confirmed by the use of a compass and was found to be out by some 40 degrees. The accurate location of north is critical when issues of interference with sunlight are in dispute.

11 A height stick was used to measure the heights to which each of the parties consider might be appropriate points to prune the trees and photographs were taken. Copies of the photographs were given to each party. Measurements and photographs were taken from each property.

12 On the applicant's property, the view was observed from each of the windows. It was a cloudy day so the amount of sunlight striking the windows was not determined.

13 From the respondents' property, the hedge was viewed from the ground floor living area and kitchen at the rear of their property and from bedrooms located on the first floor.

The assessment framework 14 This is an application made under Part 2A of the Trees act. Section 14A states that: (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level)

15 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. 16 Section 14D covers the Court's jurisdiction to make orders. 17 Section 14 E provides the matters of which the Court must be satisfied before making an order. Relevantly, this section reads (in part): (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (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. 18 Section 14F covers the matters to be considered by the Court in making any orders. The evidence and submissions 19 With respect to a severe obstruction of a view, the applicant contends that hedge 1 dominates the view from the windows of the informal living room, the study and the second bedroom. In his opinion, the view should be of the sky and other features of the area and that the views of the hedges are oppressive. 20 With respect to the issue of sunlight to a window, the application contains a table showing the amount of sunlight reaching each of the windows between the hours of 10:30 am and 4:30 pm on 17th August 2010. The table indicates which trees are blocking the sunlight. 21 Trees 1-13 (hedge 1) affect windows W1-W7 and parts of windows W8-W10. Hedge 2, trees 14-21 have a limited impact on W8 late in the afternoon and affect window W10 from about 1.30pm. The most affected window is W10, (the second bedroom) with no direct sunlight on that day from 11:00am. The least affected windows are W4 and W5 as these generally face west. 22 The applicant did not provide shadow diagrams however these were produced by the respondent. These diagrams were tendered in evidence and include plan views and elevations. 23 The shadow diagrams show the impacts of both hedges at 9.00am, 12pm and 3pm on 22 June, and 22 March (the autumn equinox). The diagrams indicate the shadow cast by the trees at their existing height of 13m, at 8m, 5m and 2.5m. 24 It is noted that windows W4 and W5, given their orientation towards the west are only likely to receive afternoon sun. 25 The 22 June diagrams show that Windows W1, W2 and W6 receive sunlight until 12.00pm at the current height of hedge 1 although the eaves of the house may limit sunlight to W6. At 8m height, windows W1, W2, W6-9 receive sunlight to 12:00pm. At 5m all windows receive sunlight until 12:00 pm. By 3.00pm in mid winter if hedge 1 were reduced to 2.5m, windows W1 and W-6-9 would receive some sunlight. Hedge 2 impacts on W10. 26 Mr Gerathy for the respondent submits that Part 2A of the Trees Act applies but that the trees do not cause a severe obstruction to either views from the applicant's dwelling from or to sunlight to the applicant's windows. 27 The trees were present and probably between 2-3m tall when the respondents purchased their property in 1994. The applicant is believed to have purchased her property shortly before the respondents.

28 Mr Gerathy raises the issue that inadequate notice was given to the respondents of the lodging of the application by the applicant; he contends this contravenes s 14C(1) of the Trees Act which requires the applicant to give at least 21 days notice of the lodging of the application to the owner of the trees. He contends the notice was only 3 days. 29 Mr Gerathy also raises the issue that no reasonable effort was made to reach agreement as required under s 14E(1)(a). 30 The evidence is that the applicant's son, Mr Ball, approached the respondents on 16 August 2010, 3 days prior to the filing of the application. Mr Ball verbally requested that the respondents submit a 'Request for Tree Works Approval' to Ku-ring-gai Council, presumably to have the trees pruned although the application does not elaborate on what works were to be undertaken. It appears that the applicant made no approaches to the respondents during the time she resided next door. The applicant has not resided in the property since June this year.

31 With respect to the notion of "severe" obstruction to sunlight or a view, Mr Gerathy quotes from the Macquarie Dictionary which defines 'severe' as harsh; harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfil. From the Oxford Dictionary as austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. 32 He also submits that many council development control plans adopt controls for overshadowing of living room windows and private open space. He states that though they vary from council to council, a typical control for a low density residential development for satisfactory solar amenity would be 3 hours of sunlight to living room windows and private open space for at least 50% of their respective areas on 22 June between 9:00am and 3:00pm. He contends that severe overshadowing would be markedly less than 3 hours on 22 June in order to result in conditions that are 'hard to endure'. 33 Of the 10 windows subject to the application, Mr Gerathy contends that W1 and W2 are principal living room windows that receive reasonable exposure. W3 is the top half of a door and forms an extension to W2. He considers that W4 and W5 are associated with a living area but a constrained by their orientation. Windows W6-8 are either frosted or serve the laundry, and W9 and 10 are bedroom windows although W9 is currently a study. 34 He contends that the living room windows W1 and W2 receive full sun between 9:00 am and 12:pm and thus would typically meet planning controls. The remaining windows receive some sun but should be given less weight as they are used sparingly through the day. 35 He also contends that the March equinox diagrams show that there is no overshadowing from the 13m trees of any of the ten windows prior to midday and that the principal living room windows will not be overshadowed until about 2.00pm and by 3.00 pm all windows are overshadowed. 36 With respect to the views, Mr Gerathy submits that 'views from a dwelling' should be interpreted as a view to some feature or features of significance, for example a landmark or an otherwise attractive element of the built or natural environment. This, he says, is to be distinguished from an outlook of a kind ordinarily expected within an urban environment, for examples to other houses, trees or a road. 37 In this regard, Mr Gerathy asserts that the applicant's single storey dwelling does not (and would not, irrespective of the respondents' trees) enjoy a view of any note or significance. Rather, he states, it only enjoys a typical and ordinary outlook of other residential buildings interspersed with vegetation. The topography of the site does not give rise to any other than an ordinary view.

Findings 38 With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1). 39 Mr Gerathy's concerns about the 3 days between the applicant's son visiting the respondents and then filing the application in essence go towards s 14E(1)(a) and the making of a reasonable effort. 40 I agree that the effort to come to an agreement has been less than ideal. However, s 14E(1)(a) states that (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and 41 The making of orders presumes that the matter has been heard. Orders generally follow a judgment; even Consent Orders require a determination and a reason for agreement. The Act does not prescribe a time period for reaching an agreement or provide guidance on a reasonable effort. 42 The experience of the Court in these matters is that attempts by applicants to negotiate an agreement with their neighbour are often unsuccessful. This may be due to many factors including a flat refusal by a respondent to participate, ambit or unreasonable requests by an applicant, a history of previous disputes about other matters and cultural differences. 43 In a number of matters that have come before the Court, an applicant has made a single approach to a tree owner before the making of the application. There is a period of at least 21 days from the serving of the application until the preliminary/ directions hearing. The Court considers that this period is available for parties to negotiate an agreement. A number of disputes have settled before the directions hearing and the matter has been discontinued. Similarly, matters have been resolved and discontinued post directions hearing and prior to the date set for the final hearing. 44 The hearing also provides another opportunity for the parties to come to an agreement. In a number of matters, the parties have agreed on consent orders and the Court has concurred. 45 Therefore, while the initial approach was only some days prior to the filing of the application, there have been opportunities up until the end of the hearing for negotiations to occur. On the basis of this, I do not propose to dismiss the application on the basis on non-compliance with s 14E(1)(a).

Views 46 Section 14E(2)(a)(ii) states that: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

47 In these matters it is necessary to determine if the obstruction of a view is severe. In order to do this, several questions need to be considered. Does the hedge obstruct a view from a dwelling? What is the nature and extent of the view that would be available in the absence of the obstruction? If a view is obstructed, is it a severe obstruction? If the obstruction is found to be severe then the Court must balance, in accordance with s 14E(2)(b), the interests of the applicant in having the obstruction removed, remedied or restrained with other matters (s14F) that may suggest such actions are undesirable. 48 In this matter, the hedges do obstruct views, mostly to the north and north-west, of the urban landscape beyond the north-western boundary of the applicant's property. 49 In determining the nature of the view that is obstructed, some assistance is provided by the Planning Principle on views published in Tenacity Consulting v Warringah [2004] NSWLEC 140. This is a four-step assessment process to assist in determining view sharing issues associated with development. It has some relevance to matters relating to hedges and views. 50 The first step is of assistance as it considers the assessment of the type of views affected. In this step, water views and views of icons such as the Opera House and the Harbour Bridge are considered to be valued more highly than views not of those things. In the absence of hedge 1, the applicant would have a view of the respondent's two-storey dwelling to the north-west and probably to a two-storey building and associated landscaping that is part of Fernbank Retirement Village to the north. Part of this facility can be seen from W1 and W2 (part of V1) and from W10 (part of V3). In this case, I agree with Mr Gerathy that the views are ordinary views of a suburban landscape. 51 The second step is also helpful as it considers from which part of the dwelling the views are obtained and if the views are obtained from sitting or standing position. In this matter, the views are from a rear family room (V1 from W1). The view from this window includes the hedge but also includes 2 trees on the applicant's property and trees on adjoining properties, including Fernbank Retirement Village, to the north. There are more open views through the trees to the north. The view from the study/ third bedroom is principally of the hedge (V2 from W9). 52 The applicant stressed the importance of the view from W10 (V3) as this had been his mother's bedroom and being confined to bed for long periods, the view was important. It was noted on the site visit that the orientation of the bed provides a view generally to the north. The view includes the hedge but also a view of the extent of the applicant's back garden through to other properties to the north. The view includes sky and other elements. 53 Step three is somewhat helpful as it assesses the extent of the impact for the whole of the property not just for the view that is affected. As Roseth SC states in Tenacity at para 28, 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)….It is usually more useful to assess the view loss qualitatively [rather than quantitatively] as negligible, minor, moderate, severe or devastating.

54 In this matter, the main living area and main bedroom are at the front of the house. These rooms have views across a well setback front garden to a leafy streetscape. In normal circumstances, views from bedrooms are viewed for limited periods. I consider the view loss from W1, W9 and W10 to be minor to moderate at its highest. 55 Step four is to assess the reasonableness of the proposal that is causing the impact. This step in the Tenacity planning principle is only of assistance if the view loss is considered to be severe enough to satisfy s 14E(2)(a)(ii). 56 With respect to the element of the application regarding views, I do not consider that the respondent's hedges severely obstruct any views from the applicant's dwelling and as such, the Court has no jurisdiction to make an order to interfere with the hedges on this basis.

57 If I am wrong on this, I have also considered s 14E(2)(b). The applicant wants the hedges reduced to 2.5-3m. Apart from having dire consequences for the health of the trees, I consider the applicant's request to be unreasonable with respect to the restoration of views. The view would certainly contain more sky however the view remains as an unremarkable, but not unpleasant, view of a residential landscape. There is no topographical advantage in the location of the applicant's dwelling. The location of the dwelling on the property is such that it is located towards the rear of the block and any views are limited by the proximity of the rear of the dwelling to the boundary fences of other properties. As a matter of discretion, the application also fails on this basis. 58 Therefore this element of the application is dismissed.

Sunlight 59 The shadow diagrams provided by the respondent show that hedge 2 only impacts on W10, a secondary bedroom and I consider the benefit to the applicant does not outweigh the negative aspects, including the costs, of interfering with the trees in this hedge. As a result of this, no order will be made for any interference with hedge 2 on the basis of severe obstruction of sunlight to a window. 60 The shadow diagrams indicate that windows W1, W2 and W6 currently receive sunlight for at least 3 hours on 22 June and therefore would meet the usual minimum development standards for sunlight required by most councils for new developments. At 8m windows W7, W8 and W9 would receive sun between 9.00 am and 12.00pm and W1 and W2 would receive no additional benefit. W6 and W7 serve the laundry and W8 is frosted and therefore these have a low priority for additional sunlight. While W9 is located in a room that has been used as a study, it could be a third bedroom and is therefore it is likely to be less frequently used than a living area and therefore has a lower priority than living areas in terms of sunlight. 61 I consider that if the windows of living areas receive the amount of sunlight specified in most council development control plans then it cannot be considered a severe obstruction of sunlight to a window of a dwelling. In this regard s 14E(a)(i) is not satisfied and the Court has no jurisdiction to make an order for the interference with the hedges on this basis. 62 Therefore as a result of the forgoing, the Orders of the Court are: 1. The application in its entirety is dismissed.

J Fakes Commissioner of the Court

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