Haddan v Castles

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Port Macquarie against the owners of trees growing on an adjoining property. 2The applicant is seeking orders for the pruning of a number of trees to a height of 1.6 m in order to restore views the applicant contends have been lost as a result of those trees. 3The applicant purchased her property in 1992. The views in contention are of the water, generally to the north towards Flynn's Beach, headlands near the town centre of Port Macquarie and the northern shoreline towards Point Plomer. Photographs included in the application show the views as they were at least 6 years ago before the respondents purchased their property in 2006. The photographs were taken from the front yard of the respondents' property, which is to the north of the applicant's. 4The respondents obtained council consent for alterations and additions to their dwelling. The development application also included a front fence. According to the first respondent, council conditioned the landscaping forward of the fence line as part of the consent. However, the respondents also value the landscaping for the privacy and shade it provides. The fence and landscaping were installed in 2009. 5The applicant has nominated three viewing points; all are windows/ glass doors that form the northern side of the open plan living/dining room. 6There are a number of jurisdictional tests that must be satisfied before any application under Part 2A can be determined. 7The first relevant consideration is whether the trees are a 'hedge' for the purpose of the Act. Section 14A(1) states: (1)This part applies only to groups of 2 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) 8The judgments in Wisdom v Payne [2011] NSWLEC 1012 and McLaren v Lewis [2011] NSWLEC 1170 have determined that there must also be a clear linear/ spatial arrangement of the trees. 9The on-site hearing identified three 'hedges'. Hedge 1 is a clump of bamboo planted on the front southern boundary of the respondents' property close to the dwelling and enclosed within the front yard. Hedge 2 is another clump of bamboo on the outside of the fence along the southern boundary on the south-western corner. Hedge 3 is a row of mixed species of trees and shrubs including a number of Lillypillies, a Mango tree, Ivory Curl tree, Cassia sp., and a Tuckeroo. Towards the north of that row is an established Dracena planted as a street tree on council-owned land. This tree pre-dated the respondents' ownership of their land. 10Bamboo is prescribed by the Trees (Disputes Between Neighbours) Regulations 2007 as a tree for the purpose of the Act. All hedges are planted, and most plants within the hedges exceed 2.5m in height. Therefore I am satisfied that all three hedges satisfy the jurisdictional tests in s 14A(1). 11The next relevant test is s 14E(2). This states: (2)The Court must not make an order under this Part unless it Iis 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. 12Therefore, the first consideration is whether any or all of the hedges severely obstruct a view from any or all of the nominated viewing points. 13The first general observation is that the setback of the applicant's dwelling from the street, its relationship to the respondents' dwelling, combined with the curved configuration of the street, inevitably confines the field of view. 14Dealing with V3 first, the potential view of the water from this position, essentially from the dining room table, is inherently limited by its setback from the street. The view is chiefly obstructed by a tree growing on the applicant's property and not by any of the hedges. It was agreed that the claim with respect to V3 should be withdrawn. 15It was also determined that Hedge 1 does not obstruct any view of the water from the applicant's dwelling and therefore no orders can be made with respect to this clump of bamboo. 16I am satisfied that the view from V2 is severely obstructed by Hedge 2 and possibly parts of Hedge 3. In this regard, s 14E(2)(a)(ii) is satisfied. 17With respect to V3, this is the window closest to the street and from which the most expansive views have always been available. The applicant estimates that Hedges 2 and 3 have obstructed at least 50% of the view from this window. At the time of the hearing, the coastline including Flynn's Beach, associated headlands and the northern shoreline to Point Plomer were still available. The water views are limited in the foreground by vegetation along the shoreline and punctuated by tall trees, including a prominent Norfolk Island Pine. Hedges 2 and 3 limit the views to the east of north. The closest shoreline (Flynn's Beach) is approximately 800m to the north of the applicant's dwelling. 18In matters concerning Part 2A, the Court has often referred to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. In summary, the issue of impact on views is considered in qualitative and quantitative terms. Water views are rated more highly than views of land; sitting views and views across side boundaries are noted as being more difficult to retain; and views from living rooms and kitchens are discussed as being more important than views from bedrooms. A sliding scale of impact is used where the impact of a proposed development on a view is rated as negligible, minor, moderate, severe or devastating. 19In regards to V3, I consider the impact of Hedges 2 and 3 to be moderate but not severe and therefore s 14E(2)(a)(ii) is not satisfied for this viewing point. 20However, as that section is satisfied for V2, I must consider the balancing of interests as required by s 14E(2)(b). This requires consideration of matters in s 14F of the Act. 21Of relevance are the following considerations: