Barry v Stelzer; Barry v Lucas

The hearing 4The hearing commenced on site with an inspection from the applicants' property of the views from each of 7 nominated windows and particular viewing positions through those windows. All windows and viewing points are on the first and principal floor of the applicants' dwelling upstairs from the entry level. The applicants' property slopes down to the northwest and the floor of the balcony at the rear of the dwelling is about 4.8m above ground level. The kitchen, dining and living rooms are of open-plan design and adjoin a rear deck. 5Mr Barry contends that his dwelling was constructed in 1996 specifically to take advantage of the views to the north that the block had to offer. 6The viewing points and windows are as follows: Windows W1, W2 and W3 are associated with the main bedroom; the desired views from here are principally to the north. W1 faces northwest, W2 faces north, and W3 a glass door to the rear deck, faces northeast. The views across the river to the north were seen from a standing position in this room. Window W4 faces northwest and includes the kitchen window, a glass sliding door and full-length glass panel between the deck at the kitchen/ dining room. W5 in the dining room faces north and W6, also in the dining room faces the Stelzer dwelling. From various sitting and standing positions in the dining room and kitchen, the views to the north were seen. W7 is a large bay window in the lounge room portion of the room. It is directly opposite the Stelzer dwelling. I note that the sofas in this part of the room face a fireplace at the southeastern end of the room and not W7. 7I was taken to two particular viewing points and asked to observe the view. One was in front of the fireplace in the lounge room. The view to the north from this point is constrained by the Stelzer dwelling but is obscured in part by tree 1 and tree 2 on the Stelzer property. The other spot was between the lounge and dining room portions near the corner post between windows W6 and W7. Again looking north, tree 2 obscured the view.

The application - Stelzer property 8The application with respect to the Stelzer property seeks the pruning of 6 trees to a height of 3.5m and then maintained at a height of 4-4.5m. 9The trees are growing in a narrow garden bed between the driveway and the dividing fence on the southwestern side of the property. It was noted that there were more trees in this planting than nominated in the application form. 10Tree 1 is a Callistemon sp (Bottlebrush) in relatively poor condition with a thin crown. It is opposite W7. Tree 2 is another Bottlebrush in good condition although the applicant had lopped several branches as they had overhung his property. It is about 5m to the northwest of tree1. 11Ms Stelzer stated that she particularly values these two trees as they provide privacy to the living areas in her dwelling, the back deck and to her backyard. Given the slope of the properties she contends that her property is easily overlooked, particularly by anyone on the applicants' rear deck. 12Trees 3 and 4 are described in the application as Melaleucas however there are several Leptospermum sp and Bottlebrush. These are planted close to T2. I accept it was difficult for the applicants to identify and discern individual trees so I am content to consider the group of trees as trees 3 and 4. 13Tree 5 is an avocado and tree 6 is a Pittosporum sp. Similarly, mixed in with these trees are several other plants of a range of species and varying heights. 14To the northwest of these trees are other species including Lillypillies and Pittosporum that form a contiguous planting along the portion of the driveway owned by Mr Lucas. These plants are not subject to the application. These plants appear to have been more frequently clipped as a tight hedge. 15Of relevance is that all trees to the northwest of tree 2 were pruned in March this year. When viewed from the applicants' dining room, from both sitting and standing positions, the current height of the trees is approximately level with the ridgeline of the dwelling to the northeast of the Lucas property - 115A. 16Similarly in the rear garden of the Stelzer property is a mature Phoenix canariensis (Canary Island Date Palm). This is in the view line from part of W7 and from W6.

The application - Lucas property 17The application with respect to the Lucas property is the pruning to 3.5m and maintenance to 4-4.5m of 8 nominated trees. The trees subject to the application are planted along the rear or north-western boundary and the northern side boundary at the rear of the Lucas property. 18Again it was necessary to ground-truth the location and species of trees. The application was amended to include 9 trees, 5 of which are growing along or near the rear boundary and 4 on the side boundary. 19The 5 trees along the rear boundary are tree 1 - Traveller's Palm and tree 2 - Golden Cane Palm. These 2 trees are at the rear of a small courtyard but not immediately adjacent to the rear fence. Tree 3 is another Golden Cane Palm and trees 4 and 5 are Traveller's palms. In addition to these nominated trees there are other palms and plants between these trees and elsewhere in the courtyards. The nominated trees are the tallest in the planting. 20The trees along the side boundary are a multiple planting of four Bangalow Palms -tree 6, tree 7 is a Majestic Palm and trees 8 and 9 are two Giant Bird of Paradise plants ( Strelitzia nicholai ) planted between a covered pergola and the adjoining fence with 115A. Mr Lucas stated that trees 8 and 9 are particularly important as they provide a degree of privacy between his property and the neighbouring property that is very close to the boundary. 21Of note are three Cocos Palms growing at the rear of 115A. When viewed from the dining room of the applicant's dwelling these appear behind trees 6 and 7 in the Lucas property. 22It was noted that the tallest stems of tree 8 did block part of the view from the applicants' dining area however as one moves through the room the view opens up. 23Relevant to both applications are obstructions other than the trees on the respondents' properties. Apart from the Cocos Palms on 115A there are Casuarinas on a council owned reserve that restrict views to the north-northwest. Similarly the ridgeline of 115A is higher that the Lucas dwelling and directly in the view line to the north. This property is newer than those belonging to any of the parties. To the east and northeast there is vegetation on other properties some distance away that restrict views in those directions. 24Both respondents questioned the applicants' desire to prune the trees to 3.5m given that the top of the balustrade on the applicants' rear deck is between 5.5-5.8 m above ground. They contend that 5.5m is adequate as to go further would not improve the applicants views but would compromise their privacy.

The framework for consideration 25The application is made under Part 2A of the Act. Section 14A(1) states: (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). 26Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land. 27Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located. 28Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1). 29Of significance is 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. 30If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D.

Submissions s 14A(1) 31With respect to the Stelzer trees Mr Barry contends that they meet the jurisdictional tests in s 14A(1) in that the trees were planted, rise to a height of 2.5m and form a hedge as their canopies intermingle, particularly when viewed from his property. It appears that other plants in the vicinity of trees 1 and 2 have been removed over time. Ms Stelzer does not agree with respect to trees 1 and 2 given the distance between them and the thin canopy of tree 1. She contends that the trees were not intentionally planted as a hedge. 32In regard to the Lucas trees, Mr Barry gives the same reasons as to why they comply with s 14A(1) however in this instance, there are two hedges. Mr Lucas contends that individual plantings of palms and strelitzia do not form a hedge as a hedge is something that can be clipped and pruned and palms cannot. Findings s 14A(1) 33The Trees Act does not define a 'hedge' other than to say that this Part of the Act applies to 2 or more trees planted so as to form a hedge and rise to a height of at least 2.5m. The Act does not specify species that can or cannot form a hedge nor does it require intent by whoever planted the trees that the planting was to be a hedge. In Wisdom v Payn [2011] NSWLEC 1012 at [45] Moore SC and Hewett AC state in part: 45... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge. 34Consistent with Wisdom v Payne I am satisfied that the Stelzer trees and the two groups of trees described in the Lucas property do form a hedge for the purpose of the Act and thus satisfy the jurisdictional tests in s14A(1).

Submissions s 14E(2) 35Mr Barry contends that when he and his wife built their house in 1998 they had a wide view over to Kogarah Bay and the Georges River and he had an expectation of retaining that view. 36He contends that at the time of making the application the view was severely obstructed by the Stelzer hedge in particular. Photographs tendered in exhibit A and B shows the extent of the obstruction. He submits that despite the recent pruning of trees 3-6 that trees 1 and 2 on the Stelzer property and all of the nominated trees on the Lucas property severely obstruct parts of the view. 37Mr Barry contends that his expectation of retaining his views outweighs any concerns for privacy voiced by the respondents or any detrimental effects on the trees of pruning them to 3.5m. 38Ms Stelzer does not consider the obstruction of views to be severe. She accepts that she has lost her views over time as trees have grown (including her date palm) and houses have been built including the house at 115A with its relatively high ridgeline. Despite the applicant not being concerned for his privacy she contends that her need for privacy is important to her and her family. 39Mr Lucas contends that he and Ms Stelzer pruned the trees along the driveway in good faith in response to the application. This was done at their expense and to a point he contends was agreed to by the applicants prior to 2008. He submits that it is unreasonable to expect to retain all views over such a time period when the applicants' house is set some distance back from the water with other dwellings and vegetation in between. A photograph in Mr Lucas' evidence taken on 26 March 2011 shows what he says is a view very similar to that taken by Mr Barry in 2008 down to the detail of a catamaran moored in the bay. He submits that there is therefore no severe obstruction of views from the applicants' dwelling.

Findings s 14E(2) 40I find that trees 3-6 on the Stelzer property do not severely obstruct any view from the nominated parts of the applicants' property. The view over these trees is of Gwawley Bay, the river and Kogarah Bay. As none of these trees satisfy s 14E(2)(a)(ii) the Court has no jurisdiction to make any orders for any intervention with these trees. The word 'are' in s 14E(2)(a) implies that the trees must be severely obstructing a view at the time of the hearing. 41Similarly I find that no tree in hedge 1 on the Lucas property severely obstructs any of the views desired by the applicants. Photo 5 in exhibit 2 clearly shows that to the north of these trees are buildings and trees on other properties including the council reserve. Therefore no orders will be made regarding these trees. 42With respect to trees 1 and 2 on the Stelzer property, I am not satisfied that tree 1 severely obstructs any view. I agree that tree 2 does severely obstruct a very narrow part of a view from the particular points described in [7] however these views are naturally constrained by the Stelzer dwelling. However putting the applicants' case at its highest and moving to consider s 14E(2)(b), I consider that tree 2 provides privacy for both properties and in particular that of Ms Stelzer. I consider there is very little utility in ordering any intervention with this tree because when one moves from the limited fixed viewing positions into the rest of the room as one ordinarily would, the Date Palm behind comes into view. This tree is not subject to the application but nor would it pass the tests in s 14(A)(1) as it is a solitary tree. It would seem to me from the arrangement of the sofas in the lounge room that the view though W7 is of low priority. 43Therefore as a matter of discretion afforded by s 14D I decline to make any orders for the intervention with tree 2 on the Stelzer property and I have no jurisdiction to make an order with respect to tree 1. 44With respect to hedge 2 on the Lucas property, I am prepared to accept that trees 6, 7 and 8 do obstruct part of the view from some parts of the applicants' dwelling. However, as previously stated, when one moves through the dining/ kitchen area the view opens and then narrows due to obstructions caused by things other than those trees. 45Again if I was minded to put the applicants' case at its highest and find that trees 6 and 7 did severely obstruct a view there would be very little utility in ordering the removal of these trees (as that is the order I would have to make given the fact that pruning single-trunked palms to a point beneath their growing tip kills them) given the presence of the Cocos Palms behind these trees (and therefore in the view line) at the rear of 115A. 46As previously mentioned, whilst the tallest stems of tree 8 do obstruct narrow parts of the view from W5, the obstruction diminishes as one moves towards W4.

Conclusions and orders 47In considering the evidence before me and with the benefit of the site inspection, whilst at certain fixed spots throughout the living areas within the applicants' dwelling a view may be severely obstructed, when moving through the house which is usual, the desired view to Kogarah Bay and the river is obvious and obstructed to varying degrees by many elements other than trees on the respondents' properties. 48On balance I am not satisfied that these limited obstructions warrant the ordering of any intervention with any of the trees on either of the respondents' properties. 49Therefore as a consequence of the forgoing, the Orders of the Court are: (1)Application 20091 of 2011 is dismissed. (2)Application 20092 of 2011 is dismissed. (3)The exhibits are retained. J 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: 13 May 2011