Browne & anor v Amlee Investments

Land and Environment Court (NSW)|2013-11-20

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants in this matter have lived on their property at Collaroy since 1985. Photographs taken in 1988 from the rear of their dwelling show quite extensive views of Collaroy and Narrabeen beaches as well as distant headlands at Avalon and those further north towards Gosford. 2The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of what is described as a bamboo hedge growing on adjoining land to the northeast. 3The application is made on the basis that the bamboo is severely obstructing the views they enjoyed when they purchased their property. 4The respondent's position is that the bamboo is not a hedge for the purpose of the Act, but in any event, there is no severe obstruction caused by it to any of the applicants' views. The respondent contends that the bamboo is necessary for privacy screening between the respondent's dwelling and the adjoining property to the west. 5In applications under Part 2A of the Act, there are a number of jurisdictional tests that must be satisfied sequentially.

Is there a severe obstruction of a view from the applicants' dwelling as a consequence of the bamboo? 13The next relevant test 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. 14Section 14E(2)(a)(ii) must be applied to the trees in each of the hedges and for each of the seven viewing locations nominated by the applicants. 15Views 1, 2 and 3 (V1, V2, V3) are from the deck at the rear of their dwelling; V4 is from the ground floor sunroom adjacent to the deck; V5 is from the upstairs rear balcony; V6 and V7 are from two first floor bedrooms at the rear of the dwelling. 16The views in question are all to the northeast of the ocean and distant headlands. The views from the first floor include the sand and surf zone of Collaroy beach. 17Mr Muriniti for the respondent contends that the rear deck is not part of the dwelling but rather a structure more aligned as an element of the garden. To that end he maintains that the Court has no jurisdiction to consider views from this location. 18In many applications such as this (too numerous to list), the Court has held that constructed decks, verandahs and balconies that adjoin and are contiguous with a dwelling are part of the dwelling. They are a common feature of many dwellings. 19The deck in this matter is approximately one metre above garden level and is at the same floor level as the adjoining sunroom. The applicants state that they spend a great deal of time on this deck. Therefore I consider the deck to be part of the dwelling. 20The applicants nominate three viewing positions on the deck. In Haindl v Daisch [2011] NSWLEC 1145 at [26], the Court discussed the interpretation of the words 'a view'. 26 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 separate assessment of the severity of the view from a particular viewing location on some incremental, slice by slice basis. 21Therefore V1-V3 will be combined as views from the rear deck. As one moves from one side to the other, the view to the ocean is variously constrained. 22At the hearing I observed that the view from the deck was limited to a relatively narrow portion of the ocean and distant headlands to the northeast. The view is constrained by the respondent's dwelling to the east, the trees in Hedge 1 to the west, and in the middle distance, a Cook Pine growing in the street and adjoining the beach reserve. There was little difference between sitting and standing views. 23Standing views from V4 the sunroom were similarly constrained however sitting views were obscured by shrubs growing on the applicants' property. 24From the upstairs deck/ balcony (V5) and from the bedrooms (V6 and V7), more extensive views were available including the sand/surf zone at the southern end of Collaroy beach and the sand at North Narrabeen beach. The applicants contend that the bamboo obscures the main part of Collaroy beach, including the flagged areas.

Preliminary findings 25I am satisfied on the evidence that the trees in Hedge 1 severely obstruct views from the rear deck and sunroom. I am not satisfied that the trees in Hedges 2 and 3 severely obstruct any views from any of the nominated viewing positions on the applicants' property. 26Having satisfied s 14E(2)(a)(ii) for the trees in Hedge 1, I must consider the balancing of interests inherent in s 14E(2)(b). This requires consideration of a number of discretionary matters in s 14F of the Act.

Balancing of interests and discretionary matters 27The trees in hedge 1 are several metres from the corner post that separates the parties' properties. The respondent's property is to the northeast of the applicants' property. Therefore the views are principally across side boundaries (s 14F(a)). The respondent's dwelling is opposite the beach, the applicants' property is in the second row back from the beach and slightly upslope. 28The trees were planted after the applicants' dwelling was constructed. The applicants think the bamboo was planted in or around 2007. The trees have grown to their current height in that time (s 14F(b)(c)). 29No submissions were made in regards to council controls or conditions of consent requiring the planting of the bamboo (s 14F(d)(e)). 30The bamboo contributes to the landscape design and amenity of the respondent's property. Mr Muriniti maintains that the bamboo is essential for privacy between the respondent's dwelling and the two-storey dwelling to the west. At the hearing I observed the screening effect of hedges 2 and 3 however hedge 1 is set back from that dwelling and appeared to provide no particular screening benefit. A large tree growing at the rear of the applicants' property would screen the respondent's dwelling from properties to the southwest (s 14F(h)(l)). No case is made for any contribution to public amenity. 31Given what they have observed to be the rapid growth of the bamboo, the applicants have requested removal of the bamboo rather than pruning it. With the expertise I bring to the Court I agree that reducing the bamboo to a height that restores some of the views the applicants seek could be done but would require its reduction by about two thirds its current height. Subsequent maintenance would be frequent. In the circumstances I agree that removal is a better and more practical option (s 14F(k)). 32Section 14F(m) requires consideration of things other that the trees to which the Part applies that may obstruct the view. Relevant here are the Cook Pines planted as street trees along the beach reserve opposite the respondent's property. The applicants' photographs taken in 1988 show the trees to be very small or not yet planted. While these dissect and punctuate the view from the deck, the spacing and columnar form of the trees allows views between them. As stated above, the applicants' view is otherwise constrained by the respondent's dwelling and the adjoining property to the west however the space between these dwellings creates a relatively wide viewing corridor. 33The bamboo is evergreen but may thin in the cooler months (s 14F(p)). 34The nature of the view is described in [1]. Mr Muriniti presses the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. He contends that the views are not of iconic structures but water views. He maintains that views of the water and the land/water interface are available. Using the sliding scale of impact of negligible, minor, moderate, sever and devastating, Mr Muriniti considers that qualitatively, the view loss is moderate and not severe and that sitting views across side boundaries are difficult to retain and that views from bedrooms should be given little weight (s 14F(q)(r)). 35In this matter I find that the principal obstruction as a consequence of the trees in Hedge 1 is of views from living areas and not from the upstairs bedrooms. I agree that sitting views are difficult to maintain and over time, cannot be expected to be retained. However I find that qualitatively and quantitatively the impact is severe, although perhaps on the moderate side of severe. 36In regards to other matters (s 14F(s)), as stated above, the applicants' property is in the second row of dwellings back from the beach. It was suggested that as such, water views could not be expected to be retained. It was also suggested that a new dwelling may be constructed on what is now the large garden area between the respondent's dwelling and the property to the west and should this arise, the applicants would inevitably lose most of their water views. 37While this may be the case, that is a scenario that is not relevant to the matter before me. Section 14E(2)(a) requires consideration of the obstruction of views as assessed at the hearing.

Conclusion and orders 38In considering the evidence and submissions I find that the application should be upheld in part and the bamboo comprising Hedge 1 is to be removed. As stated above, I consider removal to be a more practical solution rather than pruning. 39I also agree with the applicants that any replacement plants should be maintained to a height no greater than 2.5m. 40In their application, the applicants ask that the respondent pay their costs. Commissioners do not have the power to award costs. Claims for costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 41Therefore, the Orders of the Court are: (1)The application is upheld in part. (2)Within 60 days of the date of these orders the respondent is to remove, or have removed, the southernmost large clump of bamboo growing on the south-western boundary of the respondent's property. (3)Any regrowth is to be removed. (4)Any replacement plantings are to be maintained at a height not exceeding 2.5 m above ground level.

Judy 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: 22 November 2013

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