Solicitors:
Respondents Swaab Attorneys
File Number(s): 353149 of 2016
[2]
JUDGMENT
COMMISSIONER: In 2001 the applicant purchased a unit in Lane Cove. It is on the second floor of a three storey block. She contends that at that time, she obtained very pleasant views of a wide mix of vegetation - both native and exotic species, characteristic of the Lane Cove area, from her primary living areas.
In April 2009, the respondents purchased their dwelling which is located to the north and rear of the applicant's apartment block. The respondents state that there were 10 young Leyland Cypress trees that had been planted along their southern boundary by the previous owner. They purchased the house with the view that the trees would grow and thicken and provide privacy and screening from neighbouring properties, including the apartment block at the rear. I note that Exhibit C identifies the land on which the applicant's unit block is located is zone R4, high density residential, and the land on which the respondents' dwelling is located is zone R2 - low density residential.
The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and maintenance of the Leyland Cypress trees to a height not exceeding 3.5m. The orders are sought on the basis that the views she once enjoyed are becoming more restricted by the trees, and as the trees will potentially reach 30m in height, the impact on the views will worsen. The applicant is concerned that even after pruning, the trees regrow at least one metre per year.
The respondents value the trees for the privacy they afford their property, in particular their backyard and pool. They state that the trees have been professionally pruned three times in the past seven years and are maintained in a tidy state. In essence, the respondents submit that the Court has no jurisdiction to make the orders because a reasonable effort to reach agreement has not been made by the application (s 14E(2)(1)(a)) and the obstruction as a consequence of the trees is not severe (s 14E(2)(a)(ii)). If however the Court were to find in the applicant's favour, they contend that pruning to a height of 3.5m would unreasonably compromise the amenity the trees provide.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and do they reach a height of at least 2.5m above ground level?
There is no dispute that the trees are trees to which the Part applies. During the on-site hearing they were measured to be approximately 7m tall. This concurs with a survey dated 2 February 2017.
The next jurisdictional test is s 14E(1)(a) which requires the applicant to have made a reasonable attempt to reach an agreement with the trees' owners. Ms Rose, the respondent's solicitor, contends that the respondents had not received any correspondence from the applicant between 2014 and the service of the Class 2 application in December 2016. She maintains that her clients were unaware that the applicant had an issue with view loss as they had been dealing with the Owners' Corporation. Ms Rose submits that there was no attempt to put forward an option that might meet the needs of both parties.
The applicant's position is that there has been a long history of correspondence and discussions between the Owners' Corporation and the respondents that is well documented. She deemed further correspondence to be unnecessary in the circumstances. The applicant stated she was unaware that the trees had been pruned as often as the respondents stated but when the application was made, the trees were much taller and appeared not to have been pruned for some time, despite what she considered had been agreed between the Body Corporate and the respondents.
In Robson v Leischke [2008] NSWLEC 152 at [191]-[196] Preston CJ discusses the clause 'reasonable effort to reach an agreement'. Although this is in the context of s 10(1)(a) in Part 2, the wording is the same in s 14E(1)(a). At [194] in Robson, His Honour notes that the Trees Act does not specify any particular timeframe or means by which an applicant is to make a reasonable effort. He states in part:
….Hence, although it would be preferable for an applicant to make a reasonable effort with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
While I agree that most of the communication has been between the Owners' Corporation and the respondents, there has been some direct correspondence from the applicant, albeit as the signatory/secretary of the Owners' Corporation committee. I also note that only an owner can bring an action under s 14B Part 2A of the Trees Act.
Therefore while the respondents dispute the reasonableness of the attempt to reach an agreement, I concur with Preston CJ and find that a sufficient attempt has been made and that the jurisdictional test in s 14E(1)(a) is satisfied.
The key test in applications made under Part 2A is found in s 14E(2) which 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.
Obstruction of sunlight is not part of this application.
While s 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 or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52].
In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature of the view - whether the view is of iconic structures, water, 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.
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.
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.
The applicant has nominated three viewing locations:
V1 is from within the main living area;
V2 is from the adjoining north-facing balcony; and
V3 is from the kitchen.
The view from each of the viewing positions is best described as a pleasant district view of a well-vegetated suburban landscape. The views are seen across the rear boundary from frequently occupied areas on the applicant's unit. The field of view is primarily from the northwest to the northeast. Only the north-north-eastern part of the applicant's view is affected by the respondents' trees. At the time of the hearing, from the applicant's unit, I observed the roof of the respondents' dwelling and the street and landscape beyond. The only portion of the view blocked by the trees was of the respondents' rear façade, backyard and all but filtered views of the pool. The rest of the available view was unobstructed.
Therefore both qualitatively and quantitatively I find that the obstruction caused by the respondents' trees is minor and not severe. As the threshold required by s 14E(2)(a)(ii) is not met, the Court has no jurisdiction to consider the matter any further.
For the record, I note that the applicant accepts that 3.5m would unreasonably impact upon the respondents' privacy and suggests that something between 3.5m and the current height of 7m would be more appropriate. I also note alternative orders proposed by the respondents in the event I made an order for pruning which is annual maintenance of the trees to a height of RL 103.7 (the current height).
However, as the Court has no jurisdiction to make any orders for any intervention with any of the trees, the only order that can be made is:
1. The application is dismissed.
Judy Fakes
Commissioner of the Court
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Decision last updated: 24 February 2017