De Lyall & anor v Dann & anor

Land and Environment Court (NSW)|2017-03-28|Before: Mr J

judgment

COMMISSIONER: The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and biennial maintenance to a height of 4m of a row of trees growing on the respondents' property. The orders are sought on the basis of the applicants' contention that the trees severely obstruct sunlight to windows of their dwelling and views from their dwelling.
The respondents reject the applicants' contentions on jurisdictional and factual grounds.

Relevant background

In October 2001, the applicants purchased a property in New Lambton in the City of Newcastle. In 2003 they lodged a Development Application for the demolition of the existing dwelling [presumably at the front of the site] and the erection of a three storey dwelling, a two storey dwelling at the rear of the block, and proposed subdivision of the land into two allotments. A modified consent was subsequently granted in May 2007. An Occupation Certificate for the new dwelling at the rear was issued on 1 April 2011. The lot was then subdivided. The applicants reside in the new dwelling at the rear of the original allotment. The new dwelling fronts a laneway and is on the lower portion of the original sloping lot. It was confirmed on site that the dwelling was substantially constructed in 2010.

Jurisdiction

In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test is whether the trees are trees to which Part 2A applies. This requires there to be two or more trees planted so as to form a hedge and which attain a height of at least 2.5m. The trees must also be on adjoining land.
As considered in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 at paragraphs [5]-[7] in citing Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the concept of adjoining land can apply to a property across a road. This has also been applied to cases involving Part 2A applications including Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356. Similarly in Cavalier v Young [2011] NSWLEC 1080 at [7] a common corner post on diagonally adjacent properties was considered sufficient to satisfy the requirement that land be adjoining.
In this case, I am satisfied that, in the absence of the laneway, there would be sufficient overlap of property boundaries to satisfy this requirement. There is no dispute that the trees otherwise meet the requirements of s 14A(1). A survey of the trees from the laneway, dated 3.3.17, (Exhibit C) indicates heights of 7.1-9.9m.
The key test in applications made under Part 2A is found in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

Sunlight

The applicants contend that the trees severely obstruct winter sunlight to three windows on the ground floor (W1-W3) and three windows on the first floor (W4-W6). The windows are numbered on each floor from east to west. The applicants rely on shadow diagrams (Exhibit D) prepared for them by Sorenson Design and Planning and based on the surveyed heights of the trees.
The respondents dispute the accuracy of the north point shown on the plans, which they say is shown further to the west than it should be.
The nominated windows are:

W1 - an east-facing highlight window of a bedroom.
W2 - north-facing, full-length glass sliding doors to that room.
W3 - north-facing, glass front door.
W4 - north-facing, full-length glass sliding doors, open-plan principal living area
W5 - centrally located north-facing full length window
W6 - north-facing full-length glass sliding doors to main bedroom.

The plan-view shadow diagrams show the shadows cast by the respondents' trees as well as a large Jacaranda growing in the southeast corner of the property to the immediate west of the respondents' property and thus opposite the northeastern corner of the applicants' property. The diagrams have been prepared for June 21 (winter solstice) at 8.00am, 9.00am, 10.00am, 11.00am, 12.00pm, and 3.00pm. The shadow diagrams do not show shadows cast by the applicants' dwelling or by fences and other structures or by trees on other properties further to the northwest.
The diagrams indicate that the respondents' trees are likely to shade: all windows at 8.00am; W1, W2, W3, W4 and W5 at 9.00am; and possibly W1, W2 and W4 at 10.00am. From 11.00am the only minor obstruction to the easternmost windows arises from the Jacaranda.
During the on-site hearing I also observed that W1 is very close to and generally below the boundary fence on the eastern boundary of the applicants' boundary. W3, the front door, is recessed about 1.5m into the ground level and some 3.5m from the edge of the balcony above. The upstairs windows are setback about 1.5m from the edge of the covered balcony. There is a privacy screen on the eastern end of the balcony. All of these elements would contribute to the shading of the windows.

Findings - Sunlight

On the evidence before me, I am not satisfied that the respondents' trees severely obstruct sunlight to any of the applicants' nominated windows. As noted above, there are elements of the applicants' dwelling and fencing that will also cause some obstruction.
In considering sunlight applications, the Court often has regard to the usual planning controls required by councils for solar access; this is normally about 3 hours to windows of principal living areas between the hours of 9.00am and 3.00pm on 21 June.
The shadow diagrams show that the respondents' trees are only likely to obstruct early morning sunlight, and that for most of the winter solstice, they have no impact on the applicants' windows.
As the jurisdictional test in s 14E(2)(a)(i) is not met, the application in regards to sunlight is dismissed.

Views

In their application claim form, the applicants state that the nature and extent of the affected view is the same from each viewing point. The view is described as an "approximately 150 degree iconic view across the entire district and in particular to the northeast of the ocean and Stockton and beyond". They contend that the remaining view is no longer an iconic view because the view of the ocean and Stockton is obscured and only limited district views remain and the panoramic nature of the view is destroyed.
The nominated viewing locations are:

V1 - view through, and adjacent to, W2 - ground floor bedroom glass doors and adjoining terrace;
V2 - view through W4 - first floor living area and adjoining terrace; and
V3 - view from the first floor main bedroom and adjoining terrace.

During the on-site hearing, the applicants maintained that from V1, there is a qualitative and quantitative loss of sitting and standing views to the northeast of district views of Lambton, North Lambton and Waratah. The first respondent stated that in order to see district views from that location, the trees would have to be reduced to about 1m above fence height.
From V2 and from V3, the applicants state that the 'iconic' view of Stockton is to the northeast; however they maintain that the desirable, panoramic district views of the football stadium, coal loaders, ships in dock, Lambton Park, as well as the general industrialised landscape of Newcastle, are also compromised.
Mr Hollier, the applicants' solicitor, submits that without the trees, the views are panoramic, however up to 30% of the available view is now blocked by the respondents' trees. He contends that the trees break the continuity of the views and have had a devastating impact on the views of Stockton Bight, which to those who live in Newcastle, are iconic views.

Findings - views

In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature of the view - whether the view is of iconic structures, water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The second step considers the location from which the view is seen - across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. The third step considers the use of the rooms from which the views may be affected - views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.
The Court has considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state: 26 However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
During the hearing, the applicants were granted leave to tender photographs taken in 2010 from their partially constructed/ almost completed dwelling (Exhibit E). The most useful of these photographs is one taken from the upper balcony across the tops of the respondents' trees towards the northeast. The photograph shows that in 2010 the trees punctuated the distant horizon, which, because it is not possible to see in the photograph, I was told was the ocean and Stockton Bight. Any views of Stockton would thus have been between the tops of the trees.
The relevance of this evidence is discussed in McDougall v Philip [2011] NSWLEC 1280 as the revision of the Trees Act that incorporated Part 2A, does not create a right to a view, or sunlight, that was unavailable when an applicant purchased their property. This is further expanded in Mayes v Keene [2016] NSWLEC 1604, where I held that the starting point for any obstruction of views from an applicant's dwelling as a consequence of trees on a respondent's property to which Part 2A applies must start from the views available when the dwelling was constructed. If there is no dwelling on an applicant's land, or in this case, the relevant portion of that land, there can be no view available from it.
In this matter, the generally unobstructed views available from all viewing points are principally district views, the majority of which are available to the north (across the front boundary) and to the northwest. It is highly unlikely that there were any district views to the northeast available from V1 when the applicants' dwelling was substantially completed in late 2010. I agree with the respondents that the trees were well-established before construction started. On the evidence of the photographs taken in 2010, it would appear that the trees were then approximately 6-7m tall. [The 2010 photographs also indicate that since then, a two storey dwelling, which replaced a single storey dwelling, has been constructed on the adjoining property to the east of the respondents' land. This will have obstructed some elements of the applicants' view.]
In regards to the views from the principal living area, V2, I agree that whatever view of Stockton there may have been is now obscured by the respondents' trees. From the photographic evidence, and with the benefit of the site inspection, the views of the coastline are very distant. Using the scale in Google Maps, the nearest part of Stockton Beach would be at least 8 km away as the crow flies. It is still possible to see the football stadium, the southern end of the Stockton Bridge, and parts of the coal-loading facility. The predominant view to the northeast is a district view and across a side boundary. Quantitatively I consider the obstruction to be in the vicinity of 15-20% between V3 and V2.
Overall, I am not satisfied that the obstruction of view achieves the threshold level of 'severe'; I consider the impact to be in the minor/moderate range. Even if I had found the threshold reached, any orders for pruning would be limited to the height of the trees in 2010.
However, having found that the respondents' trees are not severely obstructing views from the applicants' dwelling, the Court has no jurisdiction to make any orders for any interference with the trees.
As a consequence, the Orders of the Court are: 1. The application is dismissed. 2. All exhibits except A are returned.

Judy Fakes 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: 13 April 2017

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