Coleman v Scern; Dunn v Scern - [2011] NSWLEC 1146 - NSWLEC 2011 case summary — Zoe

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Coleman v Scern; Dunn v Scern

[2011] NSWLEC 1146

Land and Environment Court (NSW)|2011-05-09

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Court

Land and Environment Court (NSW)

Decision date

2011-05-09

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Judgment (3 paragraphs)

[1]

Matter No 21040 of 2010: P & M Coleman (Applicants) L Scern (Respondent)

[2]

Matter No 21041 of 2010: J & A Dunn (Applicants) L Scern (Respondent) Representation: Counsel: Ms L M Saw, Barrister (Applicants in both matters) Solicitors: (Applicants in both matters) Mr C McFadzean, Solicitor Shaw Reynolds Bowen & Gerathy Lawyers (Respondent in both matters) File Number(s): 21040 and 21041 of 2010

[3]

EXTEMPORE Judgment 1Pindari Avenue and Central Avenue at Beauty Point have positions on top of a ridge that slopes to the west towards portion of Middle Harbour. Properties located on the western side of Pindari Avenue have the potential, for some of them (including the two properties that are the subject of these proceedings), to have views toward that waterway. The property at 47 Central Avenue Beauty Point - owned by a person who is not a respondent to these proceedings but occupied by the respondent to these proceedings - has, through its front rooms, an expansive view to that waterway. 2These two applications relate to vegetation located on the property occupied by the respondent and seek orders for intervention with various elements of that vegetation, said to be hedges for the purposes of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). 3The nature of the orders that are sought vary between the two applications. The applications are made by the owners of 8 Pindari Avenue (Matter No 21040 of 2010) and the owners of 10 Pindari Avenue (Matter No 21041 of 2010) - 10 Pindari Avenue being to the north and slightly uphill of its neighbouring property. 4There were, at the commencement of the proceedings, said to be three vegetated elements comprising hedges located on the property occupied by the respondent. Those comprised, starting in the south western corner of the property occupied by the respondent (and treating the description of the vegetation in the form that was finally falling for determination - given an amendment to the application) comprises:

Four Cypress trees spaced at approximately a metre to a metre and a half apart located at approximately the mid point of the southern boundary of the property occupied by the respondent. These are Cypress trees that have grown to a height significantly in excess of six and a half metres:
Then there is, along the eastern boundary and continuing in an L shape along the northern boundary of the property occupied by the respondent, a series of trees that are predominantly Lilly Pillys but are interspersed with other vegetation; and
At the western end of the northern boundary, there were three low shrubs that were initially said to be a hedge but are now abandoned by the applicants for the purposes of any orders sought. 5There is no contest, as we understood it, that the first group of trees, that is the Cypress trees along the southern boundary, meet the relevant tests contained in s 14(a)(1) of the Trees Act and therefore a constitute a hedge. 6We also understand that there is no contest that the trees that are located along the eastern boundary, although predominantly Lilly Pillys with a single interspersed tree of a different species, constitute a hedge nor that the first trees along the northern boundary of a predominant height that are Lilly Pillys with an interspersed European or African olive also constitute a hedge. 7There is a contest as to whether or not three further trees in that linear arrangement (they being a Hibiscus, a Pittosporum and a third tree of species not needing to be recorded) constitute part of the hedge. We are satisfied that, for the purposes of the dealing with the threshold issues in s 14A(1) of the Trees Act , it is appropriate to consider that they are a hedge and to take the case of the applicants in each proceedings with respect to those trees at its jurisdictional highest, for, if the applications fails with respect to those trees on the merits, it is unnecessary to determine whether or not they are part of the hedge. If this element warrants some orders with respect to these trees, it will be necessary to return to whether they constitute part of the hedge or not. 8The trees that are along the eastern side rise to a considerable height, again of some seven metres or higher, along the common boundary between the property occupied by the applicant and the property occupied by the residents of 8 Pindari Avenue. There is a gentle slope along that boundary that would appear to have a fall of three or four hundred millimetres across the relevant element of the eastern boundary. 9The trees on the northern boundary of the property occupied by the respondent are at a somewhat higher elevation with the base of their trunks being somewhere a little over a metre above the ground level of the predominant area of the backyard of the property. 10The applicants who reside at 8 Pindari Avenue have made an application on the basis that there is, in their submission put by Ms Saw, counsel on their behalf, a severe obstruction to the views from their property both at its lower living area level and from its upper master bedroom level. 11The property, the dwelling that is on 8 Pindari Avenue was constructed and occupied whilst the trees were in existence and were at a significant height, a height that had involved a prior pruning but that the trees had nonetheless attained a significant height but not one which totally interrupted the views to the extent that now occurs. We will return to that shortly. 12The second property, at 10 Pindari Avenue, is one that has a similar range of complaints made by its occupiers, that is that the views from the balcony off an upstairs bedroom as well as the views that would be obtainable from their living room are severely obstructed. It is appropriate to deal with all four of those views sequentially in order to understand the determination to which we have come in each of the proceedings. 13We commence with the property at 10 Pindari Avenue. 14When the present owners of 10 Pindari Avenue purchased their property, in July 2008, we are informed (as a consequence of a letter from a senior sales consultant at Richardson and Wrench Mosman/Neutral Bay) that at the time of their purchase sweeping water views were enjoyed from the upstairs master bedroom and that, since that time, trees on the neighbouring property have grown up to substantially obstruct that view. 15There is no evidence, with respect to the trees along the northern boundary of the property occupied by the respondent, that there was any view to the water over or past those trees available at the time of this purchase. To the extent that there may have been some water views available from some portion of the downstairs rear deck or balcony area of 10 Pindari Avenue, it would have been oblique views over the side boundary and across the tops of the Lilly Pilly trees located along the eastern boundary of the property occupied by the respondent. 16We are satisfied, taking into account the angle at which those views would be enjoyed if the trees along the northern boundary of the property owned by the applicant were to be pruned to the extent sought by the applicants, that that would merely be to improve a view from a bedroom and that that, considering the relevant principles about view sharing set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140, would be an inappropriate outcome. 17We are also reinforced in that regard by the fact that we do not consider that the purchasers of 10 Pindari Avenue could not have been on notice of the state and height of the trees along the northern boundary of the property occupied by the respondent at the time of their purchase in July 2008 - therefore that element of their application is rejected. 18We also observe that, to the extent it might be appropriate to do so, there is already a significant obstruction by a large branch on a tree of a eucalypt species growing on the property immediately to the west of 10 Pindari Avenue that, even if the vegetation along the northern boundary of the property occupied by the respondent were to be pruned, would still interfere substantially with that view that is shown in a photograph that was taken during the course of the site inspection and tendered in the proceedings. That photograph (the seventh photograph in Exhibit M) is reproduced immediately below. 19With respect to the view from the ground level of 10 Pindari Avenue, we are satisfied from what was observed during the course of the site inspection that, if there were any interference with the trees growing along the northern boundary of the property occupied by the respondent, the sole view that would be reinstated as a consequence of that would be a view effectively of the built form of the house on the property occupied by the respondent but that there might be some minor water view created by interference with the easternmost of those trees. 20We are not satisfied that, for that view (being one that was, on the evidence of the letter to the occupants of 10 Pindari Avenue, one not available at the time of their purchase), it would be reasonable to require interference with that tree because to prune it to a height that would permit that view to be opened up would, in our view, almost effectively require removal of that tree (or, possibly, those two trees) to nothing more than bare stumps. 21As a consequence of the fact that all that would be created by significant interference with the vegetation along the northern side of the property occupied by the respondent would be a view of the built form of the house on that property and that any minor water view possibly created would effectively require the removal of the residual tree, that element is also rejected. 22The consequence of the foregoing is that the order, in the Matter No 21041 of 2010, is that the application is dismissed. 23With respect to those proceedings, it is therefore not necessary to determine whether the three trees at the western edge of the vegetation along the northern side of the property occupied by the respondent form part of that hedge or not as they are entirely obscured by the trees that will remain. 24For similar reasons and the potential impact on the trees along the northern boundary of the property occupied by the respondent, we are not satisfied, on the application of the occupants of 8 Pindari Avenue, that there is any basis upon which we could order intervention with, let alone effect removal of, any of those trees and to that extent the application of the occupiers of 8 Pindari Avenue for vegetation along the northern boundary of the property occupied by the respondent is also dismissed. 25We now turn to the areas where we are satisfied that some order for intervention should be made. 26Until this time, we have cautiously been using the expression, the property occupied by the respondent. The reasons for that are that the owner of the property (who is the stepmother of the respondent) has not been served in the proceedings and, in the course of a Notice of Motion hearing last week that was resolved by consent, the parties agreed that the application that had been sought against the owner of the property should be dismissed. On the basis of a variety of oral evidence given by the now sole respondent in the proceedings, by consent he was retained as a respondent in the proceedings despite the fact that he is merely an occupier, being, we suppose at law, at best, a tenant at will of the premises. 27However, the Trees Act provides that an occupier is deemed to be an owner for the purposes of this Act [see s 3(1)]. We are satisfied, on the basis of the evidence given last week, that the respondent is in a position to obey any orders that the Court might make obliging him either to do works to the property or to permit works do be done to the property and that he certainly has access, through a trust fund of which he appears to be the sole relevant guiding mind and practical controller, to funds for any works that we might order. 28It is now then necessary to deal with the two groups of trees that are the remaining ones that are effectively required to be considered in the application of the occupants of 8 Pindari Avenue. 29The first concerns the orders that are sought relating to the Cypress hedge on the southern boundary. The orders that are sought with respect to this hedge is that those four trees should be initially pruned to a height of 4.5 m and permitted to regrow to a height of 4.7 m prior to any further maintenance pruning being required for them. 30It is clearly the position that, if any pruning is to be ordered to the vegetation that is growing along the eastern boundary of the property, it will be necessary to order the pruning of those four Cypress trees to the height that is proposed by the occupants of 8 Pindari Avenue - because to fail to do so, if there were to be pruning of the vegetation along the eastern boundary (absent pruning of the Cypress trees) such orders would be a matter of futility in achieving the objectives of the Trees Act of reinstating elements of a view that were otherwise severely obstructed by vegetation. 31There is, on our assessment, no conceivable privacy; vegetative outlook; sun screening; wind protection or any other relevant utility in preserving those four Cypress trees above the heights that are proposed by the applicants in matter 21040 of 2010. The orders made at the end of this element of the decision will reflect the pruning proposed by those applicants with respect to those trees. 32We now turn to the question of the trees across the eastern boundary. The application originally sought pruning of the Lilly Pillys in a fashion that would have had them pruned to below floor height of the balcony at its lower level on these applicants' property. That was amended by Ms Saw on instructions and not opposed by Mr McFadzean for the respondent to seek pruning to an initial height of 5 m and to permit regrowth to 5.2 m before maintenance pruning would be required. 33These trees are, on our assessment as earlier indicated, well in excess of seven metres in height. Part of the referencing of heights that we undertook, during the course of the site inspection, was to reference heights on the applicant's side of the fence along the coping of their swimming pool - that coping being horizontal whereas, on the respondent's property, it is clear that the ground slopes gently from north to south. 34We consider that it is appropriate for the orders that we make to be referable to the ground level on the respondent's side of the fence - that is the present natural ground level on the respondent's side of the fence. That will mean that the pruning that we order will not be a horizontal pruning but will be consistent with the past pruning that has been undertaken with the consent of the respondent (this sloped from north to south at heights above the ground varying from 5.74 m at the northern end to 5.6 m at the southern end - measured on the bases of the dead upward stumps of some residual past pruned elements of these Lilly Pilly trees). 35We are satisfied that, as with 10 Pindari Avenue, an element of the views that is the basis of the application is from the upstairs bedroom of 8 Pindari Avenue. We are satisfied, for the same reasons to those enunciated with respect to 10 Pindari Avenue, that it is not appropriate to intervene to preserve views from bedrooms or balconies associated with them (that being a position consistent with the view sharing principles set out in Tenacity ). 36As we have concluded that there should be intervention with the trees in order to reinstate views from the lower level, the bedroom level of that property will also get a reinstatement of views to a considerably greater extent. However, we do not use the impact on views from the upper levels of that property as any basis upon which to found orders for interference with the trees - it is merely appropriately to do so with regard to the impact on views from the living areas on the ground level. 37The outlook from this location is shown on the photograph below. 38As a consequence we find that the views from that level are severely obstructed, that being a finding necessary to be made for the purposes of s 14E(2)(a)(ii) of the Trees Act . 39We do not make that finding with respect to the views from the upper level as there are significant residual views still available - so that, whether or not it is appropriate to consider views from bedrooms, we are satisfied that the two views that we inspected from that level are such that they are not severely obstructed (being merely obstructed but not severely) and that that jurisdictional test is not satisfied for that level. 40However, as we have already indicated that that is of limited relevance given that the intervention with the trees that we propose to order as requested by the applicants, that is pruning initially to a height of 5 m above natural ground level on the respondent's side of the fence with maintenance pruning to be required so that these trees remain pruned to a maximum height of 5.2 above ground level. This will provide a significant reinstatement of the views to the ground level of 8 Pindari Avenue. It will also have what one might describe as the collateral or slipstreaming benefits of providing significant views to the upper levels of both 8 and 10 Pindari Avenue but we do not rely on either of those as a jurisdictional foundation for making these orders. 41With regard to the matters that we have needed to take into account pursuant to s 14E(2)(b) of the Trees Act (that is, balancing the interests effectively of the parties to the proceedings and critically, for at least one of the trees, the habitat value of the tree on the property occupied by the respondent providing habitat for a possum of indeterminate species whose nest was observed during the course of the site inspection), the respondent seeks to preserve what he says is the necessary level of privacy to the rear private open space of the property that he occupies and to the rooms on the ground and upper levels that are facing to the east. 42With respect to the viewing into the upper level room, it is functionally a bedroom (although presently occupied for the purposes of computer operations with an unmade double bed and substantial numbers of storage boxes). As the distance between that room and the upper level of 8 Pindari Avenue and the upper level of 10 Pindari Avenue is in excess of twenty metres, that being significantly in excess of any setback that would be provided as necessary for privacy purposes under any planning consideration of a bedroom to bedroom viewing opportunity, that separation is no basis upon which we could order the retention of higher vegetation on the basis of the setback bedroom to bedroom of at least twenty-two metres as we understand it to 8 Pindari Avenue and a significantly longer distance to 10 Pindari Avenue (even if it were possible to view into the bedroom on the property occupied by the respondent from the upper level of 10 Pindari Avenue, a proposition that we doubt on the photographic evidence). 43With respect to the protection of the privacy of the rear private open space, the pruning of the vegetation along the eastern boundary that we propose to order will have a limited impact on the ability to view into that area from the bedrooms of 8 and 10 Pindari Avenue. We do not believe that it will provide any opportunity for viewing into those areas from the lower level of 8 Pindari Avenue and, to the extent that there might be some viewing from 10 Pindari Avenue, it will be at best oblique and limited. Indeed, there is already, on our observation of the site, some filtered viewing to the private open space of the property occupied by the respondent from levels of 10 Pindari Avenue through the lower more open areas without vegetation on the trees that are along the northern boundary. There is no privacy basis, therefore, from either the upper level bedrooms or the ground floor of 10 Pindari Avenue to stand as an obstruction to the ordering of the pruning of the vegetation along the eastern boundary. 44To the extent that there might be viewing from the bedroom of 8 Pindari Avenue, at its upper level, into the ground floor area of the property occupied by the respondent, that too will be at a distance well in excess of twenty-two metres. Bedrooms are, as a matter of planning consideration, presumed to be occupied generally speaking for the purposes of rest and, whilst there is a generous balcony accessible from that bedroom, it is to be presumed (for the reasons that were discussed by us in Haindl v Daisch [2011] NSWLEC 1145 ) that balconies that are adjacent to bedrooms are to be used for comparatively limited purposes by occupants and are not to be regarded or assumed to be major entertaining areas associated with the property. 45We are therefore satisfied that there is no reasonable privacy concern held by the respondent for overlooking from the balcony or the bedroom of 8 Pindari Avenue into either the ground floor room in the house that he occupies or, indeed, into the private open space at the rear of it. 46We are satisfied that, at the level of pruning that we propose to order (being the level of pruning sought by the applicants who reside at 8 Pindari Avenue), there will not be any significant privacy impact on the rear private open space. To the extent that (and we consider that it will be an extremely limited extent, if at all) there might be a view into that private open space, the eye of either a standing or sitting occupant of the living areas on 8 Pindari Avenue or a person standing on the balcony to those living areas will be inevitably drawn to the view of the landscape and land/water interface beyond and that it would take a conscious effort of anti-social behaviour to make any serious observation of the respondent's private open space (even if ,as we consider it unlikely, there might be some view into it). 47The consequence of all of that is that in matter 21040 the orders of the Court will require the pruning of those trees. 48We now turn to the question as to who should pay for that pruning; whether there should be some ongoing pruning order; and, finally, whether there should be some order with respect to the wildlife habitat located in one of the trees. We have reached the following conclusions with those matters. 49We consider that, despite the fact that the owners of 8 and 10 Pindari Avenue had offered to contribute to the cost of the pruning:
First, it is not appropriate to make any such requirement with respect to the owners of 10 Pindari Avenue as their application has been dismissed in its entirety;
Second, as the trees that are growing on the property occupied by the respondent have grown and have not been pruned in the recent past, the intent of the Trees Act as we understand it is to permit us to order a property owner, amongst other things, to be required to maintain a hedge so that it does not severely obstruct a view from a neighbouring property; and
Third, whilst the owners of 8 Pindari Avenue made an offer that was a joint offer with the owners of 10 Pindari Avenue to contribute to the pruning of the hedge, we have no information that would permit us to draw the conclusion that that offer was other than a conjoint offer with the owners of 10 Pindari Avenue and that it could in some way be construed as a stand alone offer. 50Whilst it may well be, out of the goodness of their hearts, the occupiers of 8 Pindari Avenue may make some ex gratia contribution to the pruning that we propose to order to be undertaken to the trees on the eastern boundary of the property occupied by the respondent, we do not propose to order that they make any such contribution. 51The parties have agreed that any pruning that should be undertaken should be undertaken within thirty days of the date of these orders. 52There is a concern expressed on behalf of the respondent, as we understand it, about the making of any further orders that would bind the respondent to undertake pruning on an ongoing basis. The term "owner" is defined in the Trees Act as including an occupier. Although these are the first proceedings in which orders will be made against an occupier, to the best of our knowledge, and certainly the first proceedings in which orders will have been made against an occupier solely [as opposed to an owner who is an owner in fee of some interest in the property], it is nonetheless appropriate to be an order that is made against Mr Lee as the "owner" (in defined terms) of the property. The position is that if the title owner ceases to be the owner then the immediate successor in title to the title owner can be bound provided there is appropriate service of the order on that new title owner (see s 16(1A) and (2) of the Trees Act ). 53We are satisfied that, despite the fact that Mr Lee has indicated his intention to leave Australia and return to study in Hong Kong, it is appropriate to make an ongoing order for the pruning of the trees to the pruning level that we have specified and for that order therefore to be one capable of enforcement in the future. Against the possibility that the property, when ceased to be occupied by Mr Lee, may not be occupied by a new person (who would be deemed to be the owner as a consequence of the provisions of the Trees Act ), we propose to give the applicants in Matter No 21040 specific leave to re-approach the Court if it were to become necessary for them to seek orders for them to be able to access the land and carry out the pruning themselves at some future time. 54Finally, before pronouncing the formal orders, we have considered the question of the possum that is resident in one of the trees toward the southern end of the Lilly Pillys along the eastern boundary of the property occupied by the respondent. We think that it is probable that, in the course of any pruning that the respondent will carry out to that tree, that pruning is likely to impact on the possum and probably require the removal of the possum's nest. Whilst, in wildlife intervention terms in order to ensure that the possum was not in residence at the time of the pruning, it would be necessary to order that the pruning be carried out at night that is clearly an absurdity. 55We are satisfied that the appropriate alternative response is to require that an accredited wildlife rescuer with an organisation such as WIRES be in attendance prior to the pruning in order to catch, remove and release the possum should the possum be in occupancy at the time of the pruning so that the wildlife rescue and the pruning activities, in effect, take place simultaneously. 56As a consequence of all of the foregoing, in Matter No 21040 of 2010, the orders of the Court are as follows: 1.With respect to the group of four Cypress trees located on the southern boundary of the respondent's property at the approximate mid point of that boundary, the respondent is ordered to prune, within thirty days, those trees to a height not exceeding 4.5 m above ground level at the base of the trunks of those trees. 2.The respondent is to maintain those four trees, pruned so that at no time in the future do they exceed a height of 4.7 m above the ground level at the base of the trunks of those trees. 3.With respect to the trees across the eastern boundary, the respondent is to prune those to a height of 5 m above the existing natural ground level for each of those trees at the point where the trunk enters the ground. 4.The pruning in (3) is to be maintained so that at no time in the future do any of those trees exceed a height of 5.2 m above the height required for the initial pruning. 5.All pruning of the trees on the southern and eastern boundaries of the property is be carried out within thirty days of these orders. 6.The pruning in (1) to (4) is to be conducted by an arborist with AQF level 3 qualifications and appropriate WorkCover insurances. 7.At the time the pruning in (3) is to be carried out, the respondent shall arrange for a wildlife carer of an organisation such as WIRES or similar be present at the time of the pruning in order to be able to undertake a capture, trap and release for the possum that appears to be resident in the southern end of those trees. 8.To the extent that it may be necessary for the person carrying out of the pruning of the trees in (3) and (4) to access the air space of the applicants' property for the purposes of effecting the pruning to the trees on the eastern boundary, such access is required to be given by the applicants on reasonable notice, at a reasonable hour of the day, and subject to the applicants having the right to supervise that access if it is required. 9.If for some reason, it is necessary for there to be physical access (other than access to the air space) to the applicants' property for the purposes of giving effect to the pruning along the eastern boundary, physical access is to be made available on reasonable notice, at a reasonable hour of the day, and with the applicants having the opportunity to supervise that access if it were to be required. 10.The pruning and the wildlife rescue costs are to be met by the respondent. 11.The ongoing pruning costs are to be met by the respondent; and 12.If, for any reason, the respondent fails to carry out any of the orders for pruning or wildlife rescue that have been made, the applicants have leave to re-approach the Court to enable the Court to consider whether any order should be made pursuant to s 14(2)(g) and (h) of the Trees (Disputes Between Neighbours) Act 2006 to permit the applicants to carry out the works and recover the cost of the carrying out of the works from the respondent. Tim Moore Senior Commissioner for Phil Hewett Acting 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: 07 June 2011