Bradshaw v Liao & anor

The trees

1. The seven trees the subject of this application comprise five Leyland Cypress (cultivar - 'Leighton Green') (from south to north, T1-T5) which appear to have been planted some time before two other Leighton Green Leyland Cypress - trees T6 and T7. Trees T1-T5 are planted down a slope and are all below the ground level of the applicant's property. T6 and T7 are to the north of the other trees and are located on an upper terrace. All trees are in excess of 2.5m and all wholly located on the respondents' land. Given the two apparent planting events, I consider there to be two 'hedges', however there is no dispute that the trees in both groups are trees to which Part 2A applies.
2. In the application claim form (Exhibit A2), the applicant estimates the height of trees T1-T5 in May 2012 to have been about 8m, and T6-7 to be 5m; with current heights estimated at 15m for T1-5 and 10m for T6-7.
3. The applicant engaged Mr Mark Kokot, Consulting Arborist, to inspect and report on the trees. In February 2017, Mr Kokot measured the height and width of the trees and the diameter of the trunk at the base of each tree. The heights at this time: T1 - 9m; T2 - 11m; T3 - 12m; T4 - 12m; T5 - 13m; T6 - 7.5m; T7- 7m. Tree 5, the largest tree has a trunk diameter at its base of 500mm.
4. In order to achieve the height desired by the applicant Mr Kokot notes the amount of foliage to be removed and summarises the likely impact on the trees of pruning in a table on p8 of his report (p43 Exhibit A2). The amount of foliage to be removed against the total height is as follows: T1 - 1/9 [ie.1m reduction of a total of 9 m]; T2 -2/11; T3 - 5/12; T4 - 6/12; T5 - 7/13; T6 - 4/7.5; T7 - 4/7. Mr Kokot states T5 may decline given a significant loss of foliage of 7m [7/13m] and that T4 is likely to tolerate a loss of 6m [6/12m].

Sunlight

1. The applicant has nominated seven windows on all three levels of his dwelling, to which he says sunlight is, or may be, obstructed by the respondents' trees. During the on-site hearing, magnetic north was determined using two compasses. The applicant's house plans show the house to be oriented in a north-south direction from front to back. The compass bearings shown in the application form show neither magnetic or true north orientation of the dwelling. Allowing for the difference between true north and magnetic north, I am satisfied that the architectural plans show the correct orientation of the dwelling and nominated windows.
2. W1 is the key window of concern. This is an east-facing floor to ceiling window measuring 3m x 2.8m on the south-eastern corner of the middle storey. It adjoins the south-facing full-length glass door panels identified on the plan in the application claim form as W2 and W3.
3. The part of the dwelling in which these windows are located is a large open-plan area on the eastern side of the applicant's large dwelling and which includes the dining table and kitchen. Other windows in this room include the kitchen window (erroneously marked as W1 in Mr Kokot's report and adopted by the respondents as W1 in their evidence), a large angled, east-facing skylight above the kitchen, as well as other full-length windows facing south, and internally to an internal courtyard. There is a large south-facing terrace across the entire middle storey of the dwelling, accessed from the eastern and western wings.
4. The applicant contends that the trees severely obstruct early morning sun from 5.30-11.00am in summer and from 6.00-10.30 am in winter. The applicant has not provided any shadow diagrams or times and dated photographs demonstrating this obstruction of sunlight. During the hearing the applicant produced sun-path diagrams to prove his point however these were not allowed into evidence as they had not been provided to the respondents or the court.
5. The respondents' evidence (Exhibit 1) includes a series of stamped and dated photographs taken at various times of the day between 18 June and 8 July 2017; that is around the winter solstice. The photographs show the blinds drawn on W1 [marked as W2 in Exhibit 1]. The photographs show that at 6.09 am on 28/6 the sky is still dark; after sunrise W1 is principally shaded by the respondents' dwelling until about 8.30am with some shading from the trees. On 22 June 2017 W1 was in full sun (apart from minor shadowing from the applicant's air conditioner). From about 11.30am in early July, the window is shaded by the applicant's dwelling. Two of the photographs show sunlight on the large east-facing skylight above the kitchen.
6. The respondents state that given the timing of the application and the hearing, they were unable to take similar photographs around the summer solstice.
7. The other windows nominated in the application claim form are W4 and W5 - a south-facing window and glass door respectively of the TV room on the upper level of the applicant's dwelling. The claim form states that they are not yet affected in regards to sunlight and the applicant does not press them. W6 is the east-facing bedroom window on the ground floor (below W1); W7 is the south-facing, ground floor bedroom window below W2-3. W7 is below the upper terrace and set back from the ground floor terrace.

Findings - sunlight

1. Given the south-facing aspect of windows W2, W3, W4, W5 and W7, none of them are likely to receive any meaningful direct sunlight, irrespective of the respondent's trees.
2. I am satisfied that the trees severely obstruct sunlight to W6 however, in considering the balancing of interests in s 14E(2)(b), no orders will be made for any intervention with the trees on the basis of sunlight for the following reasons. In balancing the interests of the parties, consideration is given to relevant matters in s 14F.
3. The trees on the respondents' property were well-established and above the height of this window when the applicant purchased his property. This is clearly shown in Pic.36 on p 27 Exhibit 1. As discussed at length in McDougall v Philip [2011] NSWLEC 1280 [21]-[24] the review of the Trees Act which incorporated Part 2A did not establish a right to a view or sunlight which was not available to an owner of land when they purchased/ occupied their dwelling. Apart from this, the room is a bedroom. The Court has regard to the usual minimum development controls for sunlight (solar access) required by most councils for new developments which are typically 3 hours of sunlight to living room windows between the hours of 9.00am and 3.00pm. pruning to permit light into this room would essentially require removal of the trees and thus remove all privacy and other amenity values currently valued by the respondents.
4. In regards to W1, I am not satisfied on the evidence before me that the respondents' trees severely obstruct early morning sunlight to that window. The respondents' photographs, discussed in [14] above, show some winter early morning shading by the Cypress trees but the shading is predominantly caused by the respondents' dwelling. As discussed above, the usual focus of concerns about sunlight is generally winter sun. I accept that in summer, the trees will block more sunlight as the sun rises to the south of east from the spring equinox to the summer solstice; however, there is no evidence to verify the actual obstruction as a consequence of the trees.
5. However, if I am wrong in that finding, on balance, and in accordance with s 14E(2)(b) of the Trees Act, no orders will be made for any interference with any of the trees on the basis of sunlight to this window for the following reasons.
6. While real estate photographs may not always be fully accurate depictions of properties for sale, they are sometimes the only source of information tendered by a party. The respondents have included a number of real estate photographs of the applicant's property taken in August 2010, some 18 months prior to his purchase of it. The photographs taken towards the south-east of the kitchen/dining area clearly show the tallest of the trees (probably T4-T5) outside W1. From the angle of the photographs, the trees were above the height of the window but understandably smaller in all dimensions than their current size. Given the growth rate of this species, the trees would have been noticeably larger when the applicant purchased his property. Therefore, there would have been some obstruction of summer morning sunlight by these trees from the time of purchase.
7. During the on-site hearing, Mr Kokot was asked to consider the extent of pruning that each of the trees may reasonably tolerate, that is, how much foliage could be removed without unduly stressing the trees. In his opinion, each of the trees could be reduced as follows: T1- 3.5m, T2 - 4m, T3 - 4m, T4 - 3m, T5 - 3m, T6 - 2.5m and T7-2m. These figures vary significantly from the figures quoted from his report in [9] above. From the arboricultural evidence provided on site I conclude that pruning to the height desired by the applicant would unduly stress most of the trees. There is no evidence to indicate how much sunlight a tolerable level of pruning would provide to W1.
8. Having regard to the other sources of sunlight in that part of the applicant's dwelling, the kitchen window and the large skylight will allow morning sun into the room and there is an abundance of ambient light available through the many full-length windows and glass doors.
9. I am also satisfied that the trees afford the respondents a reasonable level of privacy from the terraces on all levels of the applicant's dwelling as well as wind protection; these benefits would be removed if the trees were to be pruned to the level sought by the applicant.
10. As a consequence of not finding s 14E(2) in the applicant's favour, the application in respect of sunlight is dismissed.

Views

1. The applicant has nominated seven viewing positions (V1 - V7) throughout his dwelling; all are indicated by arrow as views towards the southeast.
2. Viewing positions V1-V3 are from the south-eastern portion of the middle storey of the applicant's dwelling. Views from inside are indicated as being close to the dining room table. V1 is through W1, V2 through W2, and V3 from the terrace just outside W2/W3. Viewing positions V4 and V5 are from the upper storey. V4 is through W4 - the window of the TV room and V5 is from the eastern section of upper terrace. V6 and V7 are from the lower level; V6 is through the eastern end of W7 and V7 is from the pool area outside W7.
3. The applicant contends that the view that is obstructed by the respondents' trees is a wide district view from Collaroy Plateau, the Cromer Golf Course and to Narrabeen Lakes. During the hearing, the applicant described the view as 'iconic'. The application claim form includes a photograph taken some metres to the west of V3 of the view to the south and available from all but the south-eastern corner of the middle and lower levels. The photograph shows Dee Why beach framed on either side by the associated headlands. The distant view includes most of the natural amphitheatre and the ridge on which the applicant's dwelling is located. Another photograph shows at least half of the distant beach through W3.

Findings - views

1. In determining an application under Part 2A, in particular the balancing of interests in s 14E(2)(b), the Court is also to consider the matters in s14F.
2. In addition, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 when determining the severity of the impact of trees to which Part 2A applies on views available from an applicant's dwelling. The Court has also considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state: 26 However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
3. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
4. The first three steps of the Principle in Tenacity are quite applicable to applications made under Part 2A, including several matters to be considered under s !4F.
5. The first step in Tenacity considers the nature of the view - whether the view is of iconic structures (such as the Opera House or Harbour Bridge), water, and land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The second step considers the location from which the view is seen - across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. The third step considers the use of the rooms from which the views may be affected - views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.
6. In applying these considerations to the nominated viewing locations, I am satisfied that if one were to sit or stand and face due to east/ south-east from all of the nominated viewing positions except V4 and V5, the district view of Collaroy Plateau would be severely obstructed by the respondent's trees T1-T5. The obstruction of views by the trees from the upper level, V4 (TV room) and V5 (upper terrace) are only minor to moderate and probably confined to T4-T5; the obstruction caused by T6 is negligible. [Given the topography of the area and the location of the applicant's dwelling, it is unclear how the Narrabeen lakes could be seen.]
7. The views in this direction would also include direct views into the respondents' garden and pool and more parts of their dwelling. All views in this direction are across a side boundary. However, if one were to stand and face south to southwest from those nominated positions, the district views to Dee Why are visible and unaffected by any of the respondents' trees (this also applies to sitting views from V1-V3). A much wider and virtually panoramic view of the coastline and surrounding district/ amphitheatre is available from other parts of the dwelling including the extensive terraces on all levels and from living areas on the south-western side of the middle storey of the dwelling. Extensive views are available from the middle terrace only metres from nominated position V3. V6 is from a secondary bedroom. The applicant contends that the view is 'iconic'. While the view is a very pleasant and valued scenic view and includes the distant ocean and land/water interface, it is not 'iconic' in the sense of including 'iconic' structures such as the Opera House or Harbour Bridge or of a landmark/natural feature known in the much wider community (s 14F(q)(r)).
8. While the trees have grown taller in the five plus years that the applicant has owned and resided in his dwelling, as considered for sunlight, trees T4 and T5 would have been tall enough to obscure most of the view to the east/south-east from V1 - V3 and all trees would have obscured views in that direction from the lower level bedroom V6 and from the deck outside it, V7 (s 14F(b)(c)).
9. In regards to the respondents' position, I am satisfied that the evergreen trees contribute to their privacy, landscaping, and garden design and protect them from the westerly sun in summer and from strong winds (s 14F(l)). Being planted on a slope, T1-T5 may contribute to soil stability (s 14F(j)). I accept that the trees do not have any apparent historical, cultural, social, scientific, biodiversity values or intrinsic value to public amenity (s 14F(f)(g)(i)(p)).
10. On the revised evidence of Mr Kokot, pruning to the height desired by the applicant would be far in excess of what the tree may reasonably tolerate without compromising a tree's health and possibly structure (s 14(k)).
11. The applicant has included a letter from Warringah Council (now Northern Beaches Council). The letter is in response to a complaint about the trees. The council notes that the appropriate avenue for resolving the matter is through the Trees Act; it also states that under the relevant planning instruments and controls, council consent is not required for the removal or pruning of Cupressus spp. It is not clear from the letter whether this applies to hybrids such as Leyland Cypress (xCupressocyparis leylandii). In any event, while the respondents may have the right to prune or remove their trees, they clearly do not wish to do so (s 14F(d). The roles of the Council and the Court are discussed in Ghazal v Vella (No 2) [2011] NSWLEC 1340.
12. The applicant made a bush fire hazard complaint to the Rural Fire Service regarding the potential bush fire hazard from the respondents' trees. The letter in reply from the RFS states that the outside structure of this tree species can capture or screen burning embers without a concern of ignition. However, the RFS also states that burning embers may ignite dry fuel below or within weak areas of the tree. While all of this may be true, the matter is of little or no relevance to the application under Part 2A. Bushfire issues are discussed in Freeman v Dillon [2012] NSWLEC 1057.
13. With the benefit of the site inspection and after considering the evidence before me, I am not satisfied that the applicant's interests in remedying and restraining the obstruction of views outweigh other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. Principally, there are extensive views from living areas of the applicant's dwelling, the largest trees were well-established and likely obstructed some of the view when the applicant purchased his property, the trees prevent direct over-looking of the respondents' property from the applicant's dining room, the trees provide wind protection to the respondents' dwelling, and the height to which the applicant seeks to prune the trees is arboriculturally unacceptable.
14. As a consequence of the finding on sunlight and views, the Orders of the Court are: 1. The application is dismissed.

Judy Fakes Acting 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: 25 September 2017