Byrne v Davies

The onsite hearing

1. The onsite hearing commenced with an inspection of the respondent's trees, and the adjacent courtyard and deck in consideration of privacy and aesthetics. The applicant took the Court to a public laneway which passed beside the southern side of Ms Davies' property, to illustrate the ease of public viewing from the lane which potentially compromised the respondent's privacy.
2. The Court next inspected and assessed hedge obstruction of the applicant's views from nominated locations in his dwelling and yard, prior to oral submissions. Ms Hammond, Counsel for the Applicant, represented Mr Byrne while Mr Koikas of Counsel represented Ms Davies.

The Applicant's Proposed Orders:

1. Although Mr Byrne applied for removal of all nominated trees in the application, at the hearing, he proposed additional alternative orders for: 1. Hedge 1 to be pruned no higher than the top of the second rail of the applicant's timber deck fence with a downward slope towards the west consistent with the applicant's Umbrella tree. 2. Pruning the height of Trees 7 - 11 in Hedge 2 equivalent to 300mm above the timber boundary fence adjacent to their location on the descending slope. 3. Pruning of the Water Gums in Hedge 3 (T12 - T18) at a uniform height equivalent to 300mm above the boundary fence adjacent to the closest Water Gum.
2. Mr Koikas submitted that the respondent's hedges did not severely obstruct the applicant's view but if the view obstruction was considered severe, this finding could only apply to Hedge 1, not Hedges 2 or 3. Mr Koikas stressed the importance of Hedge 1 for Ms Davies' privacy, and claimed a lattice screen had provided privacy above the applicant's deck fence prior to the applicant's purchase. Mr Koikas also submitted that Mr Byrne's methodology for consideration of obstruction severity was flawed as it assessed 'view slices' individually, rather than as a part of the total available view.
3. The applicant reiterated there was no privacy screen upon his occupation. Ms Hammond contended that oversight from the adjacent public lane which already compromised Ms Davies' privacy, reduced the significance of privacy from Mr Byrne's land. Further, Ms Davies retained privacy in her bathroom, living areas and bedroom.
4. The applicant also claimed that obstruction of views from the future construction of a dwelling west of his land should be considered in the assessment of obstruction severity.

Jurisdictional requirements - Part 2A

1. Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. Section 14A(1) states: (1) This Part applies only to groups of two or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
3. The trees were planted relatively close together in linear configurations. They ranged in height from about 2.3 - 4.5m with at least two trees in each hedge taller than 2.5m.
4. In Wisdom v Payn [2011] NSWLEC 1012 at [45], a hedge, for the purpose of the Trees Act, was described as follows: ".... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge."
5. Consequently, I am satisfied that the respondent's trees were planted with an intention to form hedges, thus s 14A(1) of the Trees Act was engaged.
6. Section 14B of the Trees Act states that; An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: sunlight to a window of a dwelling situated on the land, or any view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
7. The applicant owns his property and claims that the hedges severely obstruct views from his dwelling. This satisfies s 14B of the Trees Act.
8. Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.
9. Though the applicant required a Notice of Motion for substituted service to overcome difficulty serving the application on Ms Davies, in the end, such service was successful. An Affidavit of service from Mr Justin Richards, Licenced Process Server, dated 8 December 2023, confirmed the applicant also gave notice of the application to Council. Therefore, s 14C of the Trees Act was satisfied.
10. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
11. Section 14E(1) addresses matters of which Court must be satisfied before making an order, as follows: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
12. The applicant provided an undisputed chronology of contact with the respondent since February 2020: in person, by mail, and from his lawyer, and an unsuccessful attempt in May 2022 to organise mediation through a Community Justice Centre. Though there is no requirement for the respondent to agree to mediation, this evidence displayed that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, thus engaging s 14E(1)(a) of the Trees Act. Section 14E(1)(b) was also satisfied as the applicant had given notice of the application in accordance with s 14C of the Trees Act.

Severe obstruction of views from a dwelling

1. The jurisdiction, at s 14E(2) of the Trees Act, next requires assessment of the severity of the obstruction of sunlight to a window of a dwelling, or the obstruction of a view from a dwelling situated on the applicant's land, as a consequence of any or all of the trees in the hedges.
2. Section 14E(2) 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.
3. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

Jurisdictional considerations

1. During November 2023, prior to the hearing, Ms Davies pruned the height of Hedge 1 to about 250mm above the height of the applicant's deck fence top rail. Mr Byrne confirmed that Ms Davies pruned the height of Trees 3 - 6 in Hedge 1 by 40 - 50 cm and claimed that she also removed Tree 2. By undertaking the pruning, Ms Davies reduced the applicant's view obstruction.
2. In Tooth v McCombie [2011] NSWLEC 1004 (Tooth), the respondents also pruned their trees after the application was made and before the hearing. At [14] of Tooth, Commissioner Fakes found that the use of the present tense implies 'at the time of the hearing', as follows: "The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing."
3. To the contrary, Ms Hammond submitted that the interpretation from Steber v Job [2019] NSWLEC 1308 (Steber) should be applied in this situation, on the basis that Ms Davies had allowed the hedges to grow to severely obstruct the applicant's views, she had only pruned the hedges because of the imminent hearing, and Ms Davies was likely to allow the hedges to rapidly grow and again severely obstruct the applicant's views.
4. I was not persuaded, however, that the interpretation in Steber is appropriate in this case. In Steber, and to the best of my knowledge in the subset of applications under Pt 2A of the Trees Act where the rationale of Steber has been applied, the trees were bamboo that had the propensity to regrow a dense screen many metres tall in a single season. In Welsh v Radford [2023] NSWLEC 1095, where I applied Steber, the respondent had planted clumps of Giant Timber Bamboo and Slender Weaver's Bamboo directly in front of the applicants' living room windows. This obstructed almost all ocean views from the applicants' living room and sunlight from living room and bedroom windows. Prior to the hearing, the bamboo had been pruned to near ground level, but the bamboo clumps were large and long established. Both species, but especially the Giant Timber Bamboo which may reach heights of 20m, were likely to rapidly regrow to severely obstruct views and sunlight.
5. At [42]-[43] of Steber, Galwey AC said: "[42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order." [43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case."
6. Although I do not make my final decision regarding satisfaction of s 14E(2) until before I make an order, unlike Acting Commissioner Galwey at [43] of Steber, upon inspecting the applicant's photographs of the unpruned hedges in preparation for the hearing, I was not persuaded that obstruction of the applicant's view was necessarily severe. Further, the growth rates of Ms Davies' trees are far slower than bamboo.

Is the view obstruction severe?

1. At question 9 of the Tree Dispute Claim Details (Exhibit B), Mr Byrne nominated 10 locations on the ground floor or adjacent courtyard for the assessment of obstruction of his dwelling's views, all of which were said to contain "water, water/land interface, and horizon".
2. On Mr Byrne's diagram at Attachment A of Exhibit B (site diagram), a view path extended from each viewing location. Though most view paths pointed towards an arc around south-west, the view path from V2 - V4 extended just west of south. Mr Byrne claimed that 70 - 80% of views of water and land/water interface were obstructed by the respondent's hedges, from each and every viewing location.
3. V1 was from the entrance hallway in the northeastern corner of the dwelling from a standing or walking position. V2 was from a standing position near a bedroom doorway at the northern end of a sunroom which extended along the western side of the dwelling. V3 was from a "centre lounge area" in the west side sunroom from a standing and sitting position while V4 was also from a standing and sitting position from a breakfast/dining area at the southern end of the sunroom. Hedge impact from V2 and V3 was described as an "emerging/ partial obstructed view" and from V4 as "a partial obstructed view".
4. V5 and V6 were from sitting positions in a formal lounge located on the eastern side of the dwelling. V7 and V8 were from standing positions in the kitchen in the southeastern corner on the dwelling. V9 was from a standing position at an office desk southwest of V8, while V10 was near the eastern end of the courtyard just west of the kitchen, from both a sitting and standing position. In his site diagram, Mr Byrne indicated that Ms Davies' hedges obstructed about 70% of his otherwise available views.
5. The applicant made submissions with reference to the view sharing principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) and in cases such as this, with water views, multiple nominated viewing locations and view paths, and many elements requiring consideration, guidance from Tenacity is particularly apt. At [26] - [28], Tenacity states: "[26] The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. [27] The second step is to consider from what part of the property the views are obtained. For example, the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position, may also be relevant. Sitting views are more difficult to protect standing views. The expectation to retain side views and sitting views is often unrealistic. [28] The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively negligible, minor, moderate, severe or devastating."
6. The Court's interpretation of the words 'a view' is discussed in Haindl v Daisch [2011] NSWLEC 1145 (Haindl); at [26]-[28]: "[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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis. [27] We give a clear example in the present application, discussed in more detail later in our analysis concerning this location. When standing on the bedroom balcony looking outward, the panoramic single view able to be observed from this point: commences, to the south, with the ridgeline of the kitchen/family room wing of the applicants' house; and turning the eyes from south toward north, proceeds to encompass views towards the Harbour Bridge and those suburban elements in that foreground; then the trees that are the subject of this application; and finally, the entire panorama of the district topography and suburban built form of elements of North Sydney and Mosman from the northern end of the trees through more than 90 degrees to, effectively, the north through the northern open end of the balcony. [28] For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction…"
7. Applying the analysis from [27] of Haindl to Mr Byrne's view, when standing on the west side of the deck looking outward, the panoramic single view able to be observed from this point:

• commences, to the north northwest, towards the undulating district topography and suburban built form of elements of Northwood and continues over Woodford Bay Bicentennial Reserve to the northwest. From northwest to west, the view includes water and land/water interface around the northern and upper western edges of Woodford Bay. Part of the view in this area may have become available as a result of the demolition of a dwelling and removal of trees west of the applicant, but I understand Mr Byrne has had this benefit during the majority of his occupation.
• Turning the eyes toward the arc from west to southwest, the view encompassed a broad expanse of Woodford Bay and the foreshore and suburban built form of elements of Longueville; then
• Longueville headland, more distant water across to the Woolwich foreshore, and the suburban built form of elements of Woolwich.
• Next, towards the arc across southwest to south southwest, looking over the top of Hedges 2 and 3, the view is dominated by the melded canopies of a Cocos palm and Norfolk Island Pine located on the respondent's west side neighbours' land. Hedge 1 is part of the view between southwest and south.
• Finally, looking south through a gap between the respondent's dwelling and the canopy of her neighbour's Cocos palm, there are distant water and foreshore views of Greenwich.

1. Considering the first step of Tenacity, the applicant's views of water and the interface of land and water are highly valued, regardless of whether they include icons. From nominated viewing locations on the dwelling's western side, the applicant enjoyed relatively uninterrupted whole views across an arc of around 120 degrees from north-northwest to southwest while water and land/water interface views further south were obstructed by trees belonging to neighbours other than the respondent.
2. With respect to the second step in Tenacity, all views the applicant claimed were severely obstructed were towards the south-west across Ms Davies' side boundary or across both Ms Davies' side boundaries towards the south. V4 and V5 in the formal lounge were nominated as sitting views while V10 was deemed as views from "either a seated or standing position".
3. Towards the back of his affidavit of 24 January 2024 (January affidavit), Mr Byrne provided photographs from 2022 or 2023 showing alleged view obstructions from each viewing location and, for most locations, comparative photographs from 2019, soon after his occupation.
4. For V1, at page 7 of the January affidavit, Mr Davies said he had "lost the "first impression" view of Woodford Bay from my entrance hallway" but no 2019 comparative image was included. Views from locations on the eastern side of the dwelling (V1, V5, and V6) were inherently narrow due to adjacent walls and doors and were significantly compromised as they were gained through multi paned windows and doors and the deck fence. Further, to accommodate views that initially passed across the dwelling, view paths from the dwelling's east side locations, especially from sitting positions, needed to be horizontal or very slightly sloping down. Therefore, due to the location of the applicant's dwelling high above the harbour's water level, views from V1 and V5 would probably not include water or land/water interface.
5. From V6, seated fireside at the back of the formal lounge, the view passed at an acute angle through a multi-paned window down into Ms Davies back garden. Though they were blurry, the applicant's photographs showed Norfolk Island Pine foliage obstructing the view beyond the respondent's garden.
6. In Tenacity, at [17], Senior Commissioner Roseth said, "[t]he expectation to retain side views and sitting views is often unrealistic". This is the case here. Based on the myriad constraints of V1, V5, and V6, I am satisfied the expectation to retain desired views from these locations is unrealistic.
7. Mr Byrne's comparative photographs from V2, illustrating the 2019 and 2023 scenarios, showed partial obstruction of distant water views, otherwise available across narrow arcs either side of a large view obstruction comprising the melded canopies of a dense Cocos palm and a large Norfolk Island Pine, growing on Ms Davies' west side neighbours' land.
8. Similar comparative images for both V3 and V4, showed obstruction of the same narrow water view towards the south, between the respondent's dwelling and the Cocos palm. Towards the south-west, water views were heavily obstructed by the Cocos palm and Norfolk Island Pine. The majority of Hedge 1 duplicated this obstruction, but the western end of Hedge 1 (perhaps the last metre) also caused a minor independent obstruction of water views, otherwise available to Mr Byrne.

Section 14F considerations

1. Section s 14F(a) considers the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application. In Mr Byrne's photographs, Hedge 1 appeared fairly bushy and had grown to about 800mm above the applicant's top boundary deck railing while Hedge 2 descended down the slope with the lay of the land, close to the common boundary. Hedge 3 extended southward perpendicular to the common boundary from the lowest tree in Hedge 2. Though the trees in Hedge 3 were growing vigorously, they were relatively small and the location of Hedge 3 on a low terrace on Ms Davies' land resulted in the severity of the applicant's view obstruction as a consequence of Hedge 3, being negligible to minor. Similarly, as the trees in Hedge 2 were located on the steep downward slope extending west from Hedge 1, trees in Hedge 2 were not severely obstructing the applicant's view.
2. Section 14F(b) considers whether the trees existed prior to the dwelling the subject of the application (or if the window or part of the dwelling concerned where the dwelling has been altered or added to).
3. The jurisdiction of Pt 2A of the Trees Act was never intended to provide access to sunlight or a view not previously available to the applicant. This has been consistently applied by the Court and has its origins in Recommendation 9 of the "Review of the Trees (Disputes Between Neighbours) Act 2006 " (the Review) undertaken by the NSW Department of Justice and Attorney General and published in November 2009. The amended Trees Act, which newly included Pt 2A, incorporated all of the recommendations made in the Review. Discussing the Review at [23] of McDougall v Philip [2011] NSWLEC 1280 (McDougall), Fakes C said, "The discussion relating to Recommendation 9 [page 35] states, in part, that: "The Court would only have the power to hear matters regarding: ...cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase."" Other contextualised elements considered from Recommendation 9 were at [22]: "… c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. …"
4. A similar consideration applies to extensions or alterations that create new view locations for the applicant, this being the reason for inclusion of, "the window or part of the dwelling concerned where the dwelling has been altered or added to" under s 14F(b) of the Trees Act.
5. Construction of the applicant's dwelling preceded the planting of the hedge, but the applicant undertook a kitchen extension in 2020 that created new viewing locations. Just as, "it would not be appropriate…to gain additional solar access [or in this case a view] which had not existed at the time of the purchase" (McDougall; at [23]), it would be unreasonable for an applicant to create new viewing locations, then expect a respondent to clear foliage to establish and maintain such "new" view paths free of obstruction by existing hedges. Were this to be considered reasonable, an applicant could, for example, reconfigure a two-story dwelling by moving living areas downstairs with an expectation of the removal or major pruning of respondent's hedge trees to remedy a severe view obstruction. In its extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] - [81]. On this basis, the significance of obstruction of V7 - V9, in the new kitchen extension, shall be discounted.
6. Section 14F(e) considers "any other relevant development consent requirements or conditions relating to the applicant's land or the land on which the trees are situated." Though "development consent requirements or conditions" are thus considered, such consideration only relates to "the applicant's land or the land on which the trees are situated". Therefore, a proposed development west of and below the applicant's property is not a relevant consideration under Pt 2A of the Trees Act.
7. This finding is consistent with the guidance from Tooth; at [14]-[15], requiring the assessment of severity of obstruction in s 14E(2)(a)(ii) to be based on the site circumstances at the onsite hearing. The test does not anticipate a loss of a view in the future. This determination has been consistently applied by the Court, in all but the few cases where the rationale from Steber was deemed more appropriate.
8. Consequently, I accept Mr Koikas' submission that it would be premature to rely on a development west of the applicant's land that is merely a planned potentiality. As noted at page 11 of the Annotated Trees Act (available on the Court's website), if the development is constructed, and thus "circumstances are changed since the Court determined the earlier application", Mr Byrne may lodge a fresh application.
9. All species used in the hedges would tolerate light-moderate pruning maintenance, particularly with supplementary summer watering of Hedge 2, to compensate for rapid drainage down the steep slope (s 14F(k)).
10. Section 14F(l) considers any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated.
11. In her affidavit of 12 February 2024, Ms Davies claimed that removal of a timber lattice privacy screen from above the applicant's deck fence prior to the property sale in 2018 significantly impacted her privacy. The affidavit included a photograph of the privacy screen. Mr Byrne submitted Google Earth images from 2013 apparently showing no privacy screen present and disputed the presence and significance of the screens.
12. Mr Byrne's images from 2013 provided no insight into the situation from 2014-late 2018, however, and the privacy screen in the respondent's photograph, above Hedge 1, would have contributed significantly to the respondent's privacy. I am not satisfied that the applicant's evidence contradicts Ms Davies' claim that the screen was present not long before Mr Byrne's occupation.
13. Section 14F(m) considers "anything other than the trees, that has contributed, or is contributing, to the obstruction". As previously noted, the section of the view from west southwest to south southwest is obstructed by the canopies of a Cocos palm and Norfolk Island Pine located on the respondent's west side neighbours' land. Mr Byrne claimed he gained filtered views through the Norfolk Island Pine's canopy and this may be so on the tree's northern side, but the view was entirely obstructed on its southern side where the Norfolk Island Pine's canopy melded with the dense Cocos palm. To the south, a Sydney Red Gum and other endemic trees obstructed the land/water interface, but the impact was much less than the Cocos palm and Norfolk Island Pine, as the view elements towards the south were more distant.
14. Ms Davies has taken measures to rectify the obstruction by pruning the height of Hedge 1 (s 14F(n)).
15. The hedge trees are evergreen but the Japanese maple in the respondent's courtyard is deciduous and would probably allow improved views when it loses its leaves in winter (s 14F(p)).
16. Section 14F(q) considers "the nature and extent of any view affected by the obstruction and the nature of any remaining view". V1, and V5 - V9 have been assessed and set aside from further consideration. From V2 - V4, in the west side sunroom, the view obstructed or potentially obstructed by Hedge 1 is of distant water and foreshore views of Greenwich through a gap between the respondent's dwelling and the canopy of her neighbour's Cocos palm, along with a minor obstruction of water views north of the Norfolk Island Pine, at least from V4.
17. The remaining view from V2 - V4, spans an arc greater than 130 degrees and includes bushland, dwellings, water, and land/water interface, and the west side neighbour's Norfolk Island Pine and Cocos palm.
18. Section 14F(r) considers "the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed." Though V1, V5 and V6 from the dwelling's east side were considered important locations by the applicant, constraints from these locations, unrelated to the hedges, made the expectation of such views unrealistic. The significance of obstruction of views from V7 - V9 was discounted as these were new viewing locations created in a recent extension. On this basis, V2 - V4, and V10 comprise "the (residual) part of the dwelling the subject of the application from which a view is obstructed".
19. In Haindl, at [64], the severity of view obstruction was considered in context: "… It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view."
20. Returning to Tenacity, with consideration for the interpretation of severity from [64] of Haindl, Tenacity's third step prescribes assessment of the impact (of view obstruction) "for the whole of the property, not just for the view that is affected".
21. In Drummond v Malicki [2019] NSWLEC 1348, the Court adopted this approach; at [34] and [36]: "[34] Photographs provided by the applicant focus on the blocked views, mainly to the north. I agree that the hedge does obscure much of the view in this direction, however, I concur with the respondents' submission that it is only part of the overall view available from V3 and V4 and should be evaluated in that context. Further, I note that the extensive views of the bay below, plus a broad arc of forested district views from the north-east around to the south, along with the horizon, are largely unobstructed. … [36] While the applicants' access to views in an arc to the north has been significantly restricted, the vast majority of their broad views from V3 and V4 remain intact. Therefore, I consider the impact on the total view not to be severe, rather to be moderate at best. Therefore, no Court orders can be made for any interference with the hedge."
22. Mr Byrne did not nominate first-floor view locations and proposed that the first floor should not be assessed as available views were in bedrooms, rather than living areas. In Wein v Reeves [2022] NSWLEC 1019 (Wein), I considered a similar proposal, at [38]: "… to assess the severity of obstruction of a view from a dwelling situated on the applicant's land requires consideration of all views available from a dwelling. Applicants sometimes omit windows with poor views from consideration in the interests of efficiency, but it is unreasonable, at best, for an applicant to expect to withdraw or 'hide' an area of a dwelling containing outstanding views, such that the severity of view obstruction in other areas of the dwelling may be deemed relatively greater. This is contrary to the procedure consistently applied by the Court under Pt 2A, it compromises the intent of the jurisdiction, and taken to its extreme, would create absurd outcomes."
23. No persuasive reason was submitted as to why this case should be considered exceptional. Therefore, the customary procedure was followed and views from the dwelling's first floor shall be included in this analysis.
24. Similarly, the area at the front of the deck had uninterrupted views spanning more than 130 degrees. It appeared to be an ideal entertaining area, regardless that under comparative images of V10 in the January affidavit, Mr Byrne said, "[w]e have set our entertaining area at the rear of the courtyard and rarely use the front deck". While I appreciate that V10 may be more shaded, private, and connected to the kitchen than the front of the deck, considering that the applicant may simply move his table a few metres west of V10's nominated location to overcome or significantly reduce obstruction by Hedge 1, the severity of obstruction of V10 must also be discounted.
25. If the applicant chooses to forego potential benefit by not optimising his 'best' available views from the front of the deck or the dwelling's first floor, this does not remove the Court's imperative to consider such views. Further, Ms Davies should not suffer negative consequences arising from Mr Byrne's choice to deny these available quality views.
26. Mr Byrne's methodology for assessment of view obstruction was flawed, as claimed by Mr Koikas, as it was based on obstruction of view slices without consideration of the total available view. This is illustrated by Mr Byrne's assessment of view obstruction from V2 - V4. For each view location, Mr Byrne emphasised the obstruction of distant water and foreshore views gained southward across both Ms Davies' side boundaries, through a narrow gap between Ms Davies' dwelling and the Cocos palm's canopy, without any reference to the excellent water, foreshore, and urban views otherwise available across the arc from north northwest to west southwest. Mr Byrne's determination of 70 - 80 % obstruction by the respondent's hedges of views from V2 - V4 is thus incorrect and unreasonable. As the 'view slice' considered in his assessments comprised less than 15% of the breadth of the available view, the maximum possible view obstruction must also be less than 15% of the total available view.

Summary

1. V1, V5 and V6 were deep within the applicant's dwelling. Views from V1, from the far entrance hallway, were hard to protect and not deemed significant. Proposed views from V5 and V6 in the formal lounge were angled views from sitting positions limited by walls, doors and windows latticed with multiple small glass panes, and the applicant's timber deck fence. In any case, Hedge 1 caused minor view obstructions from these positions, at worst. The severity of obstructed views from V7 - V9 was discounted as they were relatively new locations arising from a kitchen extension. The significance of hedge obstruction of views from V10, positioned just outside the kitchen at the east of the courtyard, was also discounted due to the ease of markedly improving views by moving V10's table a few metres westward.
2. Desired southern views from V2 - V4, alleged to be severely obstructed by the respondent's hedges, comprised no more than 15% of the applicant's readily available quality views which comprised water, land/water interface, urban elements, and native bushland. As the content of the obstructed view appeared similar to readily available views, obstruction of this small proportion of the view was far less than severe.
3. Finally, the applicant's dwelling contained upstairs bedrooms, including one with a substantial west side balcony, offering 180-degree panoramic views from north to south, along with prime viewing opportunities from the west side of the ground floor deck, each of which Mr Byrne ostensibly chose not to use.

Balancing of interests

1. Had s 14E(2)(a) been met for the hedge, relevant elements in s 14F are referenced to consider the balancing of interests required by s 14E(2)(b) of the Trees Act, to determine if: (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.
2. When the availability of views is considered across the applicant's whole dwelling, the nature and current severity of obstruction of views is negligible and relatively insignificant. Conversely, the respondent's desire for privacy is reasonable, particularly as it was compromised by removal of the screen. Privacy was an important determinant of the decision in Haindl and is prioritised in many 'hedge' cases. It was unsurprising that Ms Davies would allow more growth in the Hedge 1 trees to improve her privacy.
3. In balancing the interests of the parties, as required by s 14E(2) of the Trees Act, I was satisfied that the applicant's interest in having the southern view obstruction removed, remedied or restrained does not outweigh the undesirability of disturbing or interfering with the trees in Hedge 1 that would further compromise the respondent's privacy.

Conclusion

1. Based on my site inspection and adduced evidence, I have reached the following conclusions:
2. Under Pt 2A of the Trees Act, Mr Byrne proposed tree removal or heavy pruning to reduce hedge height, based on claims of severely obstructed views. Though trees in Hedge 1 were pruned before the hearing, assessment of light or views is based on the severity of obstruction at the time of the hearing, not on potential future obstruction (Tooth; at [14]-[15]).
3. Only views towards the south were impacted by Hedge 1. Considering the outstanding views that are available across the whole of the applicant's dwelling, however, obstruction of the respondent's view was far less than severe and the respondent's desire for reasonable privacy outweighed the applicant's interest in having obstructions removed, remedied, or restrained.
4. Though this judgment provides scope for improvement to the respondent's privacy, the potential mature size of the trees, particularly the Water Gums, is worthy of consideration.

Orders

1. The Court orders: 1. The application is refused.

Amendments 18 July 2024 - Amendment to appearance reference for the Applicant in the coversheet and at [9]. 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: 18 July 2024

sunlight to a window of a dwelling situated on the land, or

any view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

1. The applicant owns his property and claims that the hedges severely obstruct views from his dwelling. This satisfies s 14B of the Trees Act.
2. Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.
3. Though the applicant required a Notice of Motion for substituted service to overcome difficulty serving the application on Ms Davies, in the end, such service was successful. An Affidavit of service from Mr Justin Richards, Licenced Process Server, dated 8 December 2023, confirmed the applicant also gave notice of the application to Council. Therefore, s 14C of the Trees Act was satisfied.
4. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
5. Section 14E(1) addresses matters of which Court must be satisfied before making an order, as follows:

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

1. The applicant provided an undisputed chronology of contact with the respondent since February 2020: in person, by mail, and from his lawyer, and an unsuccessful attempt in May 2022 to organise mediation through a Community Justice Centre. Though there is no requirement for the respondent to agree to mediation, this evidence displayed that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, thus engaging s 14E(1)(a) of the Trees Act. Section 14E(1)(b) was also satisfied as the applicant had given notice of the application in accordance with s 14C of the Trees Act.

1. The jurisdiction, at s 14E(2) of the Trees Act, next requires assessment of the severity of the obstruction of sunlight to a window of a dwelling, or the obstruction of a view from a dwelling situated on the applicant's land, as a consequence of any or all of the trees in the hedges.
2. Section 14E(2) states:

(2) The Court must not make an order under this Part unless it is satisfied:

(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.

1. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

1. During November 2023, prior to the hearing, Ms Davies pruned the height of Hedge 1 to about 250mm above the height of the applicant's deck fence top rail. Mr Byrne confirmed that Ms Davies pruned the height of Trees 3 - 6 in Hedge 1 by 40 - 50 cm and claimed that she also removed Tree 2. By undertaking the pruning, Ms Davies reduced the applicant's view obstruction.
2. In Tooth v McCombie [2011] NSWLEC 1004 (Tooth), the respondents also pruned their trees after the application was made and before the hearing. At [14] of Tooth, Commissioner Fakes found that the use of the present tense implies 'at the time of the hearing', as follows:

"The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing."

1. To the contrary, Ms Hammond submitted that the interpretation from Steber v Job [2019] NSWLEC 1308 (Steber) should be applied in this situation, on the basis that Ms Davies had allowed the hedges to grow to severely obstruct the applicant's views, she had only pruned the hedges because of the imminent hearing, and Ms Davies was likely to allow the hedges to rapidly grow and again severely obstruct the applicant's views.
2. I was not persuaded, however, that the interpretation in Steber is appropriate in this case_._ In Steber, and to the best of my knowledge in the subset of applications under Pt 2A of the Trees Act where the rationale of Steber has been applied, the trees were bamboo that had the propensity to regrow a dense screen many metres tall in a single season. In Welsh v Radford [2023] NSWLEC 1095, where I applied Steber, the respondent had planted clumps of Giant Timber Bamboo and Slender Weaver's Bamboo directly in front of the applicants' living room windows. This obstructed almost all ocean views from the applicants' living room and sunlight from living room and bedroom windows. Prior to the hearing, the bamboo had been pruned to near ground level, but the bamboo clumps were large and long established. Both species, but especially the Giant Timber Bamboo which may reach heights of 20m, were likely to rapidly regrow to severely obstruct views and sunlight.
3. At [42]-[43] of Steber, Galwey AC said:

"[42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order."

[43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case."

1. Although I do not make my final decision regarding satisfaction of s 14E(2) until before I make an order, unlike Acting Commissioner Galwey at [43] of Steber, upon inspecting the applicant's photographs of the unpruned hedges in preparation for the hearing, I was not persuaded that obstruction of the applicant's view was necessarily severe. Further, the growth rates of Ms Davies' trees are far slower than bamboo.

1. At question 9 of the Tree Dispute Claim Details (Exhibit B), Mr Byrne nominated 10 locations on the ground floor or adjacent courtyard for the assessment of obstruction of his dwelling's views, all of which were said to contain "water, water/land interface, and horizon".
2. On Mr Byrne's diagram at Attachment A of Exhibit B (site diagram), a view path extended from each viewing location. Though most view paths pointed towards an arc around south-west, the view path from V2 - V4 extended just west of south. Mr Byrne claimed that 70 - 80% of views of water and land/water interface were obstructed by the respondent's hedges, from each and every viewing location.
3. V1 was from the entrance hallway in the northeastern corner of the dwelling from a standing or walking position. V2 was from a standing position near a bedroom doorway at the northern end of a sunroom which extended along the western side of the dwelling. V3 was from a "centre lounge area" in the west side sunroom from a standing and sitting position while V4 was also from a standing and sitting position from a breakfast/dining area at the southern end of the sunroom. Hedge impact from V2 and V3 was described as an "emerging/ partial obstructed view" and from V4 as "a partial obstructed view".
4. V5 and V6 were from sitting positions in a formal lounge located on the eastern side of the dwelling. V7 and V8 were from standing positions in the kitchen in the southeastern corner on the dwelling. V9 was from a standing position at an office desk southwest of V8, while V10 was near the eastern end of the courtyard just west of the kitchen, from both a sitting and standing position. In his site diagram, Mr Byrne indicated that Ms Davies' hedges obstructed about 70% of his otherwise available views.
5. The applicant made submissions with reference to the view sharing principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) and in cases such as this, with water views, multiple nominated viewing locations and view paths, and many elements requiring consideration, guidance from Tenacity is particularly apt. At [26] - [28], Tenacity states:

"[26] The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

[27] The second step is to consider from what part of the property the views are obtained. For example, the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position, may also be relevant. Sitting views are more difficult to protect standing views. The expectation to retain side views and sitting views is often unrealistic.

[28] The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively negligible, minor, moderate, severe or devastating."

1. The Court's interpretation of the words 'a view' is discussed in Haindl v Daisch [2011] NSWLEC 1145 (Haindl); at [26]-[28]:

"[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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

[27] We give a clear example in the present application, discussed in more detail later in our analysis concerning this location. When standing on the bedroom balcony looking outward, the panoramic single view able to be observed from this point:

commences, to the south, with the ridgeline of the kitchen/family room wing of the applicants' house; and

turning the eyes from south toward north, proceeds to encompass views towards the Harbour Bridge and those suburban elements in that foreground; then

the trees that are the subject of this application; and

finally, the entire panorama of the district topography and suburban built form of elements of North Sydney and Mosman from the northern end of the trees through more than 90 degrees to, effectively, the north through the northern open end of the balcony.

[28] For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction..."

1. Applying the analysis from [27] of Haindl to Mr Byrne's view, when standing on the west side of the deck looking outward, the panoramic single view able to be observed from this point:
   • commences, to the north northwest, towards the undulating district topography and suburban built form of elements of Northwood and continues over Woodford Bay Bicentennial Reserve to the northwest. From northwest to west, the view includes water and land/water interface around the northern and upper western edges of Woodford Bay. Part of the view in this area may have become available as a result of the demolition of a dwelling and removal of trees west of the applicant, but I understand Mr Byrne has had this benefit during the majority of his occupation.
   • Turning the eyes toward the arc from west to southwest, the view encompassed a broad expanse of Woodford Bay and the foreshore and suburban built form of elements of Longueville; then
   • Longueville headland, more distant water across to the Woolwich foreshore, and the suburban built form of elements of Woolwich.
   • Next, towards the arc across southwest to south southwest, looking over the top of Hedges 2 and 3, the view is dominated by the melded canopies of a Cocos palm and Norfolk Island Pine located on the respondent's west side neighbours' land. Hedge 1 is part of the view between southwest and south.
   • Finally, looking south through a gap between the respondent's dwelling and the canopy of her neighbour's Cocos palm, there are distant water and foreshore views of Greenwich.
2. Considering the first step of Tenacity, the applicant's views of water and the interface of land and water are highly valued, regardless of whether they include icons. From nominated viewing locations on the dwelling's western side, the applicant enjoyed relatively uninterrupted whole views across an arc of around 120 degrees from north-northwest to southwest while water and land/water interface views further south were obstructed by trees belonging to neighbours other than the respondent.
3. With respect to the second step in Tenacity, all views the applicant claimed were severely obstructed were towards the south-west across Ms Davies' side boundary or across both Ms Davies' side boundaries towards the south. V4 and V5 in the formal lounge were nominated as sitting views while V10 was deemed as views from "either a seated or standing position".
4. Towards the back of his affidavit of 24 January 2024 (January affidavit), Mr Byrne provided photographs from 2022 or 2023 showing alleged view obstructions from each viewing location and, for most locations, comparative photographs from 2019, soon after his occupation.
5. For V1, at page 7 of the January affidavit, Mr Davies said he had "lost the "first impression" view of Woodford Bay from my entrance hallway" but no 2019 comparative image was included. Views from locations on the eastern side of the dwelling (V1, V5, and V6) were inherently narrow due to adjacent walls and doors and were significantly compromised as they were gained through multi paned windows and doors and the deck fence. Further, to accommodate views that initially passed across the dwelling, view paths from the dwelling's east side locations, especially from sitting positions, needed to be horizontal or very slightly sloping down. Therefore, due to the location of the applicant's dwelling high above the harbour's water level, views from V1 and V5 would probably not include water or land/water interface.
6. From V6, seated fireside at the back of the formal lounge, the view passed at an acute angle through a multi-paned window down into Ms Davies back garden. Though they were blurry, the applicant's photographs showed Norfolk Island Pine foliage obstructing the view beyond the respondent's garden.
7. In Tenacity, at [17], Senior Commissioner Roseth said, "[t]he expectation to retain side views and sitting views is often unrealistic". This is the case here. Based on the myriad constraints of V1, V5, and V6, I am satisfied the expectation to retain desired views from these locations is unrealistic.
8. Mr Byrne's comparative photographs from V2, illustrating the 2019 and 2023 scenarios, showed partial obstruction of distant water views, otherwise available across narrow arcs either side of a large view obstruction comprising the melded canopies of a dense Cocos palm and a large Norfolk Island Pine, growing on Ms Davies' west side neighbours' land.
9. Similar comparative images for both V3 and V4, showed obstruction of the same narrow water view towards the south, between the respondent's dwelling and the Cocos palm. Towards the south-west, water views were heavily obstructed by the Cocos palm and Norfolk Island Pine. The majority of Hedge 1 duplicated this obstruction, but the western end of Hedge 1 (perhaps the last metre) also caused a minor independent obstruction of water views, otherwise available to Mr Byrne.
10. In 2020, the applicant completed a renovation and extension of his south-side kitchen, which included the addition of a west facing wall with a glass door and large glass window, which are V7 and V8. Views from V9, located within the kitchen, were also not available prior to the extension. The obstruction of such newly created views is not considered as significant as pre-existing view locations. This will be considered further below, at s 14F(b), in the assessment of relevant elements in s 14F of the Trees Act, along with the third step of Tenacity.
11. The pruning of Hedge 1 prior to the hearing reduced obstruction of the applicant's view. Consequently, I found the applicant's view obstruction as a result of the respondent's hedges to be less than severe without the need for the complete assessment process under Pt 2A of the Trees Act.
12. If I was wrong, however, and the Court determined the obstruction of Mr Byrne's view was severe, and s 14(2)(E) was engaged, the Court must consider s 14E(2)(b), which in turn requires consideration of relevant matters under s 14F. Section 14F elements relevant to my assessment are examined below.

1. Section s 14F(a) considers the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application. In Mr Byrne's photographs, Hedge 1 appeared fairly bushy and had grown to about 800mm above the applicant's top boundary deck railing while Hedge 2 descended down the slope with the lay of the land, close to the common boundary. Hedge 3 extended southward perpendicular to the common boundary from the lowest tree in Hedge 2. Though the trees in Hedge 3 were growing vigorously, they were relatively small and the location of Hedge 3 on a low terrace on Ms Davies' land resulted in the severity of the applicant's view obstruction as a consequence of Hedge 3, being negligible to minor. Similarly, as the trees in Hedge 2 were located on the steep downward slope extending west from Hedge 1, trees in Hedge 2 were not severely obstructing the applicant's view.
2. Section 14F(b) considers whether the trees existed prior to the dwelling the subject of the application (or if the window or part of the dwelling concerned where the dwelling has been altered or added to).
3. The jurisdiction of Pt 2A of the Trees Act was never intended to provide access to sunlight or a view not previously available to the applicant. This has been consistently applied by the Court and has its origins in Recommendation 9 of the "Review of the Trees (Disputes Between Neighbours) Act 2006 " (the Review) undertaken by the NSW Department of Justice and Attorney General and published in November 2009. The amended Trees Act, which newly included Pt 2A, incorporated all of the recommendations made in the Review. Discussing the Review at [23] of McDougall v Philip [2011] NSWLEC 1280 (McDougall), Fakes C said,

"The discussion relating to Recommendation 9 [page 35] states, in part, that:

"The Court would only have the power to hear matters regarding: ...cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase.""

Other contextualised elements considered from Recommendation 9 were at [22]:

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

1. A similar consideration applies to extensions or alterations that create new view locations for the applicant, this being the reason for inclusion of, "the window or part of the dwelling concerned where the dwelling has been altered or added to" under s 14F(b) of the Trees Act.
2. Construction of the applicant's dwelling preceded the planting of the hedge, but the applicant undertook a kitchen extension in 2020 that created new viewing locations. Just as, "it would not be appropriate...to gain additional solar access [or in this case a view] which had not existed at the time of the purchase" (McDougall; at [23]), it would be unreasonable for an applicant to create new viewing locations, then expect a respondent to clear foliage to establish and maintain such "new" view paths free of obstruction by existing hedges. Were this to be considered reasonable, an applicant could, for example, reconfigure a two-story dwelling by moving living areas downstairs with an expectation of the removal or major pruning of respondent's hedge trees to remedy a severe view obstruction. In its extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] - [81]. On this basis, the significance of obstruction of V7 - V9, in the new kitchen extension, shall be discounted.
3. Section 14F(e) considers "any other relevant development consent requirements or conditions relating to the applicant's land or the land on which the trees are situated." Though "development consent requirements or conditions" are thus considered, such consideration only relates to "the applicant's land or the land on which the trees are situated". Therefore, a proposed development west of and below the applicant's property is not a relevant consideration under Pt 2A of the Trees Act.
4. This finding is consistent with the guidance from Tooth; at [14]-[15], requiring the assessment of severity of obstruction in s 14E(2)(a)(ii) to be based on the site circumstances at the onsite hearing. The test does not anticipate a loss of a view in the future. This determination has been consistently applied by the Court, in all but the few cases where the rationale from Steber was deemed more appropriate.
5. Consequently, I accept Mr Koikas' submission that it would be premature to rely on a development west of the applicant's land that is merely a planned potentiality. As noted at page 11 of the Annotated Trees Act (available on the Court's website), if the development is constructed, and thus "circumstances are changed since the Court determined the earlier application", Mr Byrne may lodge a fresh application.
6. All species used in the hedges would tolerate light-moderate pruning maintenance, particularly with supplementary summer watering of Hedge 2, to compensate for rapid drainage down the steep slope (s 14F(k)).
7. Section 14F(l) considers any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated.
8. In her affidavit of 12 February 2024, Ms Davies claimed that removal of a timber lattice privacy screen from above the applicant's deck fence prior to the property sale in 2018 significantly impacted her privacy. The affidavit included a photograph of the privacy screen. Mr Byrne submitted Google Earth images from 2013 apparently showing no privacy screen present and disputed the presence and significance of the screens.
9. Mr Byrne's images from 2013 provided no insight into the situation from 2014-late 2018, however, and the privacy screen in the respondent's photograph, above Hedge 1, would have contributed significantly to the respondent's privacy. I am not satisfied that the applicant's evidence contradicts Ms Davies' claim that the screen was present not long before Mr Byrne's occupation.
10. Section 14F(m) considers "anything other than the trees, that has contributed, or is contributing, to the obstruction". As previously noted, the section of the view from west southwest to south southwest is obstructed by the canopies of a Cocos palm and Norfolk Island Pine located on the respondent's west side neighbours' land. Mr Byrne claimed he gained filtered views through the Norfolk Island Pine's canopy and this may be so on the tree's northern side, but the view was entirely obstructed on its southern side where the Norfolk Island Pine's canopy melded with the dense Cocos palm. To the south, a Sydney Red Gum and other endemic trees obstructed the land/water interface, but the impact was much less than the Cocos palm and Norfolk Island Pine, as the view elements towards the south were more distant.
11. Ms Davies has taken measures to rectify the obstruction by pruning the height of Hedge 1 (s 14F(n)).
12. The hedge trees are evergreen but the Japanese maple in the respondent's courtyard is deciduous and would probably allow improved views when it loses its leaves in winter (s 14F(p)).
13. Section 14F(q) considers "the nature and extent of any view affected by the obstruction and the nature of any remaining view". V1, and V5 - V9 have been assessed and set aside from further consideration. From V2 - V4, in the west side sunroom, the view obstructed or potentially obstructed by Hedge 1 is of distant water and foreshore views of Greenwich through a gap between the respondent's dwelling and the canopy of her neighbour's Cocos palm, along with a minor obstruction of water views north of the Norfolk Island Pine, at least from V4.
14. The remaining view from V2 - V4, spans an arc greater than 130 degrees and includes bushland, dwellings, water, and land/water interface, and the west side neighbour's Norfolk Island Pine and Cocos palm.
15. Section 14F(r) considers "the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed." Though V1, V5 and V6 from the dwelling's east side were considered important locations by the applicant, constraints from these locations, unrelated to the hedges, made the expectation of such views unrealistic. The significance of obstruction of views from V7 - V9 was discounted as these were new viewing locations created in a recent extension. On this basis, V2 - V4, and V10 comprise "the (residual) part of the dwelling the subject of the application from which a view is obstructed".
16. In Haindl, at [64], the severity of view obstruction was considered in context:

"... It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view."

1. Returning to Tenacity, with consideration for the interpretation of severity from [64] of Haindl, Tenacity's third step prescribes assessment of the impact (of view obstruction) "for the whole of the property, not just for the view that is affected".
2. In Drummond v Malicki [2019] NSWLEC 1348, the Court adopted this approach; at [34] and [36]:

"[34] Photographs provided by the applicant focus on the blocked views, mainly to the north. I agree that the hedge does obscure much of the view in this direction, however, I concur with the respondents' submission that it is only part of the overall view available from V3 and V4 and should be evaluated in that context. Further, I note that the extensive views of the bay below, plus a broad arc of forested district views from the north-east around to the south, along with the horizon, are largely unobstructed.

...

[36] While the applicants' access to views in an arc to the north has been significantly restricted, the vast majority of their broad views from V3 and V4 remain intact. Therefore, I consider the impact on the total view not to be severe, rather to be moderate at best. Therefore, no Court orders can be made for any interference with the hedge."

1. Mr Byrne did not nominate first-floor view locations and proposed that the first floor should not be assessed as available views were in bedrooms, rather than living areas. In Wein v Reeves [2022] NSWLEC 1019 (Wein), I considered a similar proposal, at [38]:

"... to assess the severity of obstruction of a view from a dwelling situated on the applicant's land requires consideration of all views available from a dwelling. Applicants sometimes omit windows with poor views from consideration in the interests of efficiency, but it is unreasonable, at best, for an applicant to expect to withdraw or 'hide' an area of a dwelling containing outstanding views, such that the severity of view obstruction in other areas of the dwelling may be deemed relatively greater. This is contrary to the procedure consistently applied by the Court under Pt 2A, it compromises the intent of the jurisdiction, and taken to its extreme, would create absurd outcomes."

1. No persuasive reason was submitted as to why this case should be considered exceptional. Therefore, the customary procedure was followed and views from the dwelling's first floor shall be included in this analysis.
2. Similarly, the area at the front of the deck had uninterrupted views spanning more than 130 degrees. It appeared to be an ideal entertaining area, regardless that under comparative images of V10 in the January affidavit, Mr Byrne said, "[w]e have set our entertaining area at the rear of the courtyard and rarely use the front deck". While I appreciate that V10 may be more shaded, private, and connected to the kitchen than the front of the deck, considering that the applicant may simply move his table a few metres west of V10's nominated location to overcome or significantly reduce obstruction by Hedge 1, the severity of obstruction of V10 must also be discounted.
3. If the applicant chooses to forego potential benefit by not optimising his 'best' available views from the front of the deck or the dwelling's first floor, this does not remove the Court's imperative to consider such views. Further, Ms Davies should not suffer negative consequences arising from Mr Byrne's choice to deny these available quality views.
4. Mr Byrne's methodology for assessment of view obstruction was flawed, as claimed by Mr Koikas, as it was based on obstruction of view slices without consideration of the total available view. This is illustrated by Mr Byrne's assessment of view obstruction from V2 - V4. For each view location, Mr Byrne emphasised the obstruction of distant water and foreshore views gained southward across both Ms Davies' side boundaries, through a narrow gap between Ms Davies' dwelling and the Cocos palm's canopy, without any reference to the excellent water, foreshore, and urban views otherwise available across the arc from north northwest to west southwest. Mr Byrne's determination of 70 - 80 % obstruction by the respondent's hedges of views from V2 - V4 is thus incorrect and unreasonable. As the 'view slice' considered in his assessments comprised less than 15% of the breadth of the available view, the maximum possible view obstruction must also be less than 15% of the total available view.

1. V1, V5 and V6 were deep within the applicant's dwelling. Views from V1, from the far entrance hallway, were hard to protect and not deemed significant. Proposed views from V5 and V6 in the formal lounge were angled views from sitting positions limited by walls, doors and windows latticed with multiple small glass panes, and the applicant's timber deck fence. In any case, Hedge 1 caused minor view obstructions from these positions, at worst. The severity of obstructed views from V7 - V9 was discounted as they were relatively new locations arising from a kitchen extension. The significance of hedge obstruction of views from V10, positioned just outside the kitchen at the east of the courtyard, was also discounted due to the ease of markedly improving views by moving V10's table a few metres westward.
2. Desired southern views from V2 - V4, alleged to be severely obstructed by the respondent's hedges, comprised no more than 15% of the applicant's readily available quality views which comprised water, land/water interface, urban elements, and native bushland. As the content of the obstructed view appeared similar to readily available views, obstruction of this small proportion of the view was far less than severe.
3. Finally, the applicant's dwelling contained upstairs bedrooms, including one with a substantial west side balcony, offering 180-degree panoramic views from north to south, along with prime viewing opportunities from the west side of the ground floor deck, each of which Mr Byrne ostensibly chose not to use.

1. Had s 14E(2)(a) been met for the hedge, relevant elements in s 14F are referenced to consider the balancing of interests required by s 14E(2)(b) of the Trees Act, to determine if:

(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.

1. When the availability of views is considered across the applicant's whole dwelling, the nature and current severity of obstruction of views is negligible and relatively insignificant. Conversely, the respondent's desire for privacy is reasonable, particularly as it was compromised by removal of the screen. Privacy was an important determinant of the decision in Haindl and is prioritised in many 'hedge' cases. It was unsurprising that Ms Davies would allow more growth in the Hedge 1 trees to improve her privacy.
2. In balancing the interests of the parties, as required by s 14E(2) of the Trees Act, I was satisfied that the applicant's interest in having the southern view obstruction removed, remedied or restrained does not outweigh the undesirability of disturbing or interfering with the trees in Hedge 1 that would further compromise the respondent's privacy.

1. Based on my site inspection and adduced evidence, I have reached the following conclusions:
2. Under Pt 2A of the Trees Act, Mr Byrne proposed tree removal or heavy pruning to reduce hedge height, based on claims of severely obstructed views. Though trees in Hedge 1 were pruned before the hearing, assessment of light or views is based on the severity of obstruction at the time of the hearing, not on potential future obstruction (Tooth; at [14]-[15]).
3. Only views towards the south were impacted by Hedge 1. Considering the outstanding views that are available across the whole of the applicant's dwelling, however, obstruction of the respondent's view was far less than severe and the respondent's desire for reasonable privacy outweighed the applicant's interest in having obstructions removed, remedied, or restrained.
4. Though this judgment provides scope for improvement to the respondent's privacy, the potential mature size of the trees, particularly the Water Gums, is worthy of consideration.

18 July 2024 - Amendment to appearance reference for the Applicant in the coversheet and at [9].