Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: Thirty years ago, in 1985, the applicants purchased their Forestville property. They contend that at that time they had the benefit of panoramic views, from north to west, of the ridges and valleys of Garial National Park. They particularly enjoyed the setting of the sun from their deck and lounge room.
In 2006 the respondents purchased the adjoining property to the west and down-slope of the applicants' property; the property included a pool in the front setback. Growing on their land was a row of bamboo planted along the common boundary between the front of the respondents' dwelling and the front fence. The bamboo separates the applicants' driveway from the respondents' pool. During the hearing it was suggested that the bamboo was planted by the former owners of the respondents' property in lieu of a dividing fence. The respondents value the bamboo for the privacy it affords their pool.
The applicants have applied under s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the annual pruning of the bamboo, at the respondents' expense, to a height of 4m, or as considered during the hearing, a height of about 500mm above the floor of the upper deck. This would enable sitting views of the sunset from the deck and lounge room. The applicants also stated that they had been willing in the past to share the cost of pruning.
While the respondents dispute the applicants' claim that the bamboo severely obstructs views from their dwelling, the respondents have suggested alternative orders for the sharing of the annual cost of pruning the bamboo to a height of 1m above the floor of the upper deck. They maintain that this would enable standing views of the sunset but limit the potential for overlooking into their pool. The respondents included an architectural section of the suggested height. A ribbon tied to the bamboo near the respondents' dwelling indicated the finished height would be about 500mm or so below the eaves of their dwelling.
Burns & anor v St Clair & anor [2015] NSWLEC 1185 | Case summary | Zoe
Although the parties are very close in terms of their proposed orders, it is essential that the Court consider the jurisdictional tests that apply to applications made under Part 2A.
There is no dispute that the bamboo is planted so as to form a hedge and remains so. It is growing on the respondents' land and is in excess of 2.5m. The Trees (Disputes Between Neighbours) Regulation 2000 states that 'bamboo' is a tree for the purpose of the Act. Therefore I am satisfied that the bamboo stems are 'trees' to which the Part applies.
I am also satisfied on the evidence tendered by the parties that there has been a reasonable effort to reach an agreement, and s 14E(1) is met.
The key jurisdictional test is 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.
In determining this, some of the discretionary considerations in s 14F are useful.
The applicants have nominated five viewing locations. V1 is from the lounge room through north-facing windows and glass sliding doors; V2 is the upper deck on the northern (front) façade of the dwelling, which adjoins the lounge room. V3 is the surrounds of the pool at ground level. V4 through a west-facing window of a small room at ground level beside the covered carport. V5 is a garden terrace in the south-western portion of the applicants' back garden.
As viewing points V3 and V5 are not views from a dwelling, they are beyond the scope of the Trees Act and cannot be considered.
For the applicants, the critical viewing points are from V1 and V2 from both sitting and standing positions. The view said to be severely obstructed is to the north-west of the National Park and the sunset.
Photographs taken in the early years of the applicants' ownership from the original deck illustrate the distant district views of the undulating landscape of Garigal National Park. A later photograph taken from a standing position on the reconstructed deck shows the distant views and clearly shows the direct view into the respondents' pool - before the growth of the bamboo.
In applications concerning views, in particular whether the trees concerned are severely obstructing a view from a dwelling, the Court has gained some assistance from the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004[ NSWLEC 140. This is a four-step assessment process to assist in determining view sharing issues associated with development; the first three steps are of some relevance to Part 2A applications.
The first step considers the nature of the view affected. The view to the north-west is not of water or iconic structures and is best described as district views of natural bushland. Views of a similar kind of the same National Park are available to the north through the north-facing windows of the lounge room and from the deck. The view of the sunset is likely to be available from the kitchen window.
The second step considers from what part of the property the views are obtained. In this case, the views are across a side boundary, from sitting and standing positions. In paragraph [27] in Tenacity, the former Senior Commissioner relevantly states: "…the protection of views across side boundaries is more difficult than the protection of views from front or rear boundaries….Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic."
The third step is to assess the level of impact. This should be done across the whole of the property taking into consideration the use of the rooms from which the views are impacted. This step considers the quantitative and qualitative impacts, with the qualitative impact usually more applicable. Paragraph [28] in Tenacity includes a scale of impact from negligible, to minor, moderate, severe, to devastating.
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.
In considering the impact on the views from viewing points V1 and V2, I find that the obstruction is in the moderate range and not severe. That is, in the light of s 14E(2)(a)(ii) the trees concerned are not severely obstructing a view from the applicants' dwelling. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases is the word 'extreme'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
Garigal National Park is directly opposite the applicants' property and there are unobstructed views of it to the north. Even if the bamboo were to be pruned, it is unlikely that the distant views of the valleys would be visible given the growth of trees in the road reserve and edge of the National Park some 50m or so to the northwest. However, filtered views of the sunset may be visible through them.
Viewing point 4 is a small room currently used for storage but has been used in the past as a bedroom. The view in contention is to the north-west. It was unclear as to the nature of the view the applicants say they have lost. While a very narrow portion of the view through that window is of the respondents' bamboo, the window is directly opposite the eastern façade of the respondents' dwelling and beneath the carport, therefore it is likely to look onto vehicles. Therefore whatever view may be beyond, the principal obstruction to any view from that window is the respondents' dwelling and things other than the trees and is otherwise constrained by its location. In addition, given the use of the room is such that its occupancy is limited, no orders would be made for any intervention with the bamboo on the basis of this viewing location.
Given the findings that the trees the subject of the application are not severely obstructing views from the applicants' dwelling, the Court's jurisdiction to make orders under s 14D is not engaged. However, given the progress made between the parties thus far, there is nothing to prevent the parties continuing their efforts to reach an amicable solution.
The Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Commissioner of the Court
[2]
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Decision last updated: 28 May 2015