Boddington v Julian & anor

Judgment 1COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mosman (the site) against the owners of trees growing on a neighbouring property (to be identified as No.24D). 2The applicant seeks orders for the removal of a row of x Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) trees and their replacement with trees more suited to height restrictions and the Australian landscape. The replacement trees are to be maintained to a maximum height of 2.5m at the cost of the respondents. 3These orders are sought on the basis that the trees severely obstruct views generally to the northwest of the water of Middle Harbour and of Castle Crag from two windows of the applicant's dwelling. 4The respondents do not wish to remove the trees as they value them for the privacy they afford their property. They contend that the trees are appropriately and regularly pruned. The assessment framework 5There are a number of key jurisdictional tests that must be satisfied before the Court can make an order under part 2A for any interference with a tree. Section 14 A(1) provides: (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) 6Only if any or all of the trees meet the test in s 14A, the Court must then consider the tests in s 14E(2)(a)(ii). This states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land, 7That is - do the trees impact on views from the applicant's property? If there is an impact on views, is it severe? 8If the impact on views is severe, the Court must then consider s 14E(2)(b). This states: (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. 9In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D, but only if the jurisdictional tests in s 14A(1) and s 14E(2)(a)(ii) are satisfied. Site inspection 10The hearing commenced on site with an inspection of the parties' properties. The first task was to determine whether the properties are adjoining. Section 14B(b) 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 any view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 11The respondents' property is diagonally to the northwest of the applicant's property. In Cavalier v Young [2011] NSWLEC 1080 at [7] the Court found: 7 In the matter before the Court, the respondent's property is diagonally to the rear or northwest of the applicant's property. The only common point between the two properties is a corner post. I am satisfied that despite the limited physical connection between the two properties, they are adjoining and the matter can proceed to the next step. 12In the matter now before me, because of the variety of styles of fences on the corner where 4 properties appear to meet, there is no obvious corner post. However, there appeared to be no dispute that the fences are not on the boundaries of the properties. In taking a purposive approach to the application of the Act, I am satisfied in this instance that the two properties are adjoining and I have the jurisdiction to proceed. 13The Leyland Cypress trees are planted along the rear boundary of the respondents' property. Whilst the trees are not individually numbered, it is convenient to describe the tree closest to the applicant's property as tree 1. Using a telescopic height stick, tree 1 was measured from the applicant's property and has an average height of about 4.5m. This tree overhangs the adjoining property at the rear of the applicant's (No 22D). This tree is slightly taller than the remaining trees which have an average height of about 4.24m. 14The nominated viewing points on the applicant's dwelling are the kitchen window (V1) and the west-facing window of the sunroom (V2). The views from V1 are principally to the north and from V2 principally to the northwest. 15Standing at the kitchen sink (V1) the view to the northwest is of the hedge. The view to the north-northwest includes water views; the view directly to the north is partly obscured by the roof of No.22D (the property to the east of the respondents' property); and the view to the northeast includes water views. The arc of the view from the north-northwest to the northeast includes the ridge and skyline of Seaforth. The views of the water of Middle Harbour are partly obscured by the canopies of native trees growing in a council reserve on the northern side of the road in which the respondents' dwelling is situated. 16V2 is the view through the west-facing window in the applicant's ground level sunroom. The main windows in this room face north and there is no obstruction of views to the north and northeast (to the Spit Bridge) caused by the trees subject to the application. When sitting or standing in this sunroom and looking at V2, the view comprises the hedge on the respondents' property, the canopies of several other trees including a large Jacaranda growing on properties to the west of the respondents' property and views of water towards Sailors Bay/Castle Cove. The water views are framed by the hedge, other trees and the dwelling to the west of the applicant's property (No. 24B). 17The applicant tendered a photograph taken from V2 in 2000. The photograph shows a triangular patch of water in the middle distance framed by the Jacaranda to the left, the canopies of trees in the reserve to the right and the ridge and landscape of Castle Cove along the central axis. The tops of the Leyland Cypress can be seen above the fence but do not obscure the view however the tops of 2-3 of the trees are within the view of the water. 18The Court was taken to other parts of the applicant's dwelling and asked to consider the views from those locations. To the east of the sunroom is a deck that affords views of Middle Harbour, Spit Bridge, and a view of water and Castle Cove to the west. Upstairs is a TV room with an attached balcony from which there are extensive views of Middle Harbour and the surrounding ridgelines. It was noted that the hedge in question did not obscure any view from the upper storey; the canopies of the trees in the council reserve and the aforementioned Jacaranda obscure part of the water views. 19The hedge was inspected from the respondents' property. The respondents' property is on a steeply sloping block. At the rear is a flat, grassed, north-facing terraced area. As previously noted, the trees are planted along the rear boundary fence. There are in excess of 25 stems. Tree 1 is substantially larger in diameter than the other trees. The average height of the trees, when measured from the respondents' property is about 4.5m above ground level. It was reported that the top of the hedge was last pruned in July 2010. 20The trees were planted in 1997 to prevent over-looking of the respondents' dwelling and back garden from the dwelling to the west of the applicant's (i.e. No.24B). The respondents' property is down-slope of No.24B. The trees were planted to replace a double row of Camellia sasanqua that were not performing. According to the statement of the first respondent, the species (Leylands) was recommended by several horticulturalists including the then Council tree officer. The respondent could not recall whether landscape plans prepared as a condition of consent for a development application for additions and alterations in 1997 included the Leylands but a construction certificate was ultimately granted in 1998. 21According to the respondents when they planted the trees the original dwelling at No. 24B was a two-storey dwelling. This was subsequently re-built and the current dwelling is closer to their property than the previous dwelling. The edge of the balcony of 24B is approximately 5m from the boundary fence and the banister is approximately 4.8m above ground level. The respondents contend that the upper balcony of 24B is used for entertaining and without the hedge, their privacy would be unacceptably compromised. 22Both parties engaged arborists to prepare reports however the arborists were not present at the hearing. Both arborists attest to the vigorous nature of the trees, their potential size and the need for regular pruning if their height is to be managed. In accordance with her brief from her client, the applicant's arborist recommended other possible species. The respondents' arborist questioned the likely success of other species given the challenging growing conditions and recommended the height at which the existing hedge should be maintained. The reports were of no particular assistance to the Court. Submissions 23The applicant contends that notwithstanding the views available from the upstairs TV room and balcony, the main living area of the house is downstairs. She maintains that the hedge severely obstructs a part of the view that she once had and wishes to regain. The applicant submits that the respondents have not maintained the hedge as often as they suggest and that between 2004 and 2010, the top was not trimmed. 24With respect to privacy issues, the applicant contends that if one buys a house at the bottom of a slope it is inevitable that there will be some overlooking by properties further up-slope. 25The respondents were represented by Mr Patterson. He contends that the applicant's dwelling is removed from the water by the council reserve and the line of houses to the north and therefore there can be no expectation of an unobstructed view. 26In consideration of the jurisdictional tests in s 14E and the meaning of the word 'severe' and its applicability to the matter before the Court, Mr Patterson cites Wood v Bergman [2011] NSWLEC 1068 at [19]-[20] which state: 19 The Macquarie Dictionary uses words such as "harsh; harshly extreme; grave; causing discomfort or distress; hard to endure; rigidly exact" to define 'severe'. The oxford Dictionary includes "austere; strict; harsh; extreme". These words set the test at a high level. 20 In our opinion, for an obstruction to be 'severe', the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used. 27Mr Patterson accepts that the trees subject to the application do have an impact on the views from V2 however, the views in contention are views across the side boundaries of several properties. He contends that the best views from the sunroom are to the north and northeast through the central windows. Similarly from V1, the main view is to the north. He contends that the applicant has expansive views of Middle Harbour and its environs from several areas within the dwelling including the main living areas and the associated deck. He considers from a simple quantitative approach, the loss is not severe. 28Mr Patterson took the Court to the principles of view sharing in Tenacity Consulting v Warringah [2004] NSWLEC 140. Relevantly, the view said to be lost is a water view which is considered to be more valuable than a land view; the view is a partial view and not a whole view; the view is across a side boundary over several properties and therefore more difficult to protect than views from front or rear boundaries; sitting views are more difficult to protect than standing views; when the whole of the property is considered the portion of view lost due to the respondents' trees is minor; and, about 50% of the view from the kitchen is lost but water views are still available. Again, on balance, Mr Patterson contends that the loss of view is not severe. 29He contends that given the age of the trees and their rate of growth (as agreed in the arborists' reports) their current height of about 4.5m is evidence of regular maintenance. He submits that the trees are essential as a screen between the respondents' private open space and the property behind and that if the trees were removed or pruned there would be a devastating impact on the respondents' privacy. Findings 30I am satisfied that the trees subject to the application meet the jurisdictional test in s 14A; that is, there are 2 or more trees that are planted so as to form a hedge, rise to a height of at least 2.5 m and are on appropriately zoned land. 31With respect to each of the viewing positions, from V1 I consider that the trees subject to the application, in particular tree 1, do obstruct part of the view to the north west however, I do not find the obstruction to be severe. Standing generally in the vicinity of the kitchen sink there are water and district views to the north that are unobstructed by the respondents' trees. In this regard, I consider the loss of views to be moderate but in no way severe. 32Therefore as the test in s 14E(2)(a)(ii) is not satisfied for V1, no orders can be made with regard to any interference with the trees with respect to V1. 33In consideration of V2, and putting the applicant's case at is highest, I do find that the trees subject to the application do severely obstruct the view to the north west and therefore s 14E(2)(a)(ii) is satisfied and s 14E(2)(b) and s14F must be considered in determining whether orders of the Court are warranted. 34The relevant clauses in s 14F are: (a)The trees are wholly located on the respondents' property. Tree 1 is the closest tree and it partly overhangs the applicant's property and the adjoining property to the north. The trees are located on that particularly boundary to provide a visual screen. (b)The trees were planted after the construction of the applicant's dwelling; (c)The trees have grown to their current height during the period the applicant has owned their property; (d)Leyland Cypress are not protected by the current Mosman Council Tree Preservation Order; (e)See [22] for an outline of the hedge and relevant conditions of development consent. (h) The trees contribute to the scenic value of the land on which they are growing as they screen the dwelling behind; (k) The species is tolerant of pruning. (l) The respondents' position is that the trees are essential to their privacy given the size and proximity of the dwelling to their rear and the nature of the open space at the rear of their property; (m) In the absence of the trees subject to the application, the view sought to be regained would be somewhat obscured by the native trees in the foreshore reserve and the canopies of other trees such as the Jacaranda mentioned previously in this judgment. It could reasonably be expected that the vegetation shown in the photograph taken in 2000 will have grown in the last 11 years and the 'triangle' of water view would be diminished as a result. (n) The trees have been pruned on occasion. (p) The trees are evergreen. (q) The portion of the view said to be lost from V2 is described in [17]; paras [16 and [18] describe the view from other parts of the applicant's property. (r) The part of the dwelling from which the view is obstructed is a west facing side window of the main sunroom in the main living area of the dwelling. 35In considering the balancing of interests as required by s 14E(2)(b), I find that the applicant's interests in having the obstruction caused by the hedge remedied, restrained or removed do not outweigh the respondents' need for privacy. Overall, taking into consideration the range of discretionary matters in s14F, I find that the applicant is able to obtain expansive views of Middle Harbour and the surrounding district from many positions at the rear of her dwelling. The views the applicant seeks to regain are views in a relatively narrow corridor over side boundaries and those views are affected by vegetation well beyond the respondents' property. I also note that some water views to the west are available from V2. 36I am satisfied that this distant vegetation would so limit the views of water to the northwest that there would be very little merit in ordering the pruning of the respondents' hedge. Even in the absence of the distant vegetation if I was minded to consider pruning of the hedge, the height of 2.5m as suggested by the applicant is excessive and beyond what would be reasonable to obtain views but retain an acceptable level of privacy for the respondents. 37Therefore, as a result of the forgoing, the Orders of the Court are: (1)The application is dismissed.