Do the trees severely obstruct a view from the applicants' dwelling?
13 The next relevant jurisdictional test is found in s 14E(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied that:
(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.
14The applicants contend that the trees severely obstruct views from the north facing windows of their dwelling. When questioned as to what view was obscured, the applicants stated that they could not see the central portion of district views of the surrounding residential area, especially a distant tree line of mostly Eucalypts. The areas from which they say the view is severely obstructed are (from west to east) on the upper level - bedroom 1, bedroom 2, dining room (sitting and standing views), kitchen, and study. From the ground/lower floor, the downstairs lounge room. The applicants had also nominated the rear yard and pool however the Act stipulates that the view must be from a dwelling.
15In relation to the applicants' dwelling, the trees are some 13m to the north and roughly in the central portion of their view. They contend that in the 5 years they have lived there, the trees, in particularly the Italian Cypress, have increased in height and width and that that part of the view to the north-northwest has been lost as a result. In their application they state that the Italian Cypress were less than 4m in height when they moved in and not visible. They consider they are now about double that height. Similarly, they contend that the Golden Cypress has more than doubled in width in the last 5 years.
16At the hearing I was taken to each of the nominated rooms and asked to observe the view from each of the windows. The group of conifers is clearly a significant element in the general landscape within the immediate viewing area, particularly from the bedroom windows. The applicants were particularly concerned about the impact of the conifers from some of the north facing seats at their dining room table as the conifers are to the north of this room.
17The views of the conifers from the kitchen and the study are more oblique views to the northwest, with the views to the distant tree-line being relatively unobstructed from these rooms (unless one is standing and only looking to the northwest).
18From each of the upstairs rooms, I observed the distant tree line and district views to the northwest of the conifers; these trees were more clearly seen to the northeast. The views to the northwest are somewhat more constrained by the presence of other trees and shrubs on the applicants' property and on other adjoining properties to the northwest.
19District views from the lower level are inevitably more limited because of the position of the room and the applicants' own screen planting along the back fence.
20In considering the evidence, I am not satisfied that any of the trees the subject of this application severely obstruct any view from the applicants' dwelling. The trees are certainly part of the landscape, and part of the view. From the uncontradicted evidence provided by the respondents, the trees were clearly substantially the same size in 2009 as they were when the applicants purchased their property some eleven months earlier.
21Using the fence height as a general guide, the Italian Cypress trees were probably at least 7m tall in 2009. With the expertise I bring to the Court, I consider it highly improbable, and virtually impossible, for these trees to have grown several metres in one year or even in the 5 years during which the applicants have resided in their dwelling. Indeed, all of the trees in question are mature and growing very slowly. The trees will certainly have grown over the years but I find it highly unlikely that any of them have grown to the extent claimed by the applicants. The applicants have not provided any evidence to demonstrate the size of the trees, or the views that were available to them when they moved in; the only evidence I have of the size of the trees at about that time are photographs provided by the respondents.
22The applicants are seeking the reduction in height of these trees to 4m. The Act is not intended to provide an applicant with views or sunlight they did not originally have (see McDougall v Philip [2011] NSWLEC 1280). If any pruning were to be ordered, it would only be sufficient to restore the view that was available to an applicant at the time they purchased/ occupied their dwelling - but only if the jurisdictional tests in s 14E(2) are met (which in this case they are not).
23In regards to the view, the Court's interpretation of 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At paragraph [26], the Court states:
However, we are of the opinion that the words a view used in s 14 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 a separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
24For example, in this matter, it would be unreasonable to order any intervention with the trees based on one or two seats at the applicants' dining room table.
25Therefore after considering the applicants' position, I am not satisfied that there is a severe obstruction of any view from the applicants' dwelling (s 14E(2)(a)(ii)).
26However, if I am wrong in this, as a matter of discretion and in considering the relevant matters in s 14E(2)(b) and therefore s 14F, I am not satisfied that the severity and nature of the obstruction is such that the applicants' interests outweigh any other interests.
27In this regard, the trees contribute to the amenity and privacy of the respondents' property and to the general character of the landscape of the locality; pruning the trees to the height sought by the applicants would cause irreparable damage to their form and have a detrimental impact on their health. Considering some of the qualitative assessment criteria in the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140: the views are not of iconic structures or water views, but general suburban views; while some of the views are from living areas and the kitchen, there is little obstruction of those views as a consequence of the trees; and, views from bedrooms are less important than views from living rooms.
28Therefore the application in regards to obstruction of views is dismissed.