Haindl v Daisch

[2011] NSWLEC 1145

Land and Environment Court (NSW)|2011-02-18|Before: Mr J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2011-02-18

Before

Mr J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

The application 1This is an application made pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Part 2A was inserted in the Trees Act to take effect from August 2010, relevantly, to provide an opportunity for persons who considered that the views from their property were severely obstructed by trees on an adjoining property to seek a remedy for that severe obstruction. 2The application is based on what is claimed to be the severe obstruction of views from a number of locations on the applicants' property. The locations from which these views are observed and the nature of each view and the impact of trees thereupon are discussed in detail later.

[2]

Relevant vegetation 3In these proceedings, the three trees involved are Weeping Fig trees ( Ficus benjamina ) (the fig trees) located on the eastern and uphill boundary of a west-east running property in Mosman. The adjoining property, uphill and to the east, has extensive Leighton Green ( Cupressocyparis leylandii ) hedges along its northern and, relevantly, western boundaries. The hedge along the western boundary runs diagonally from roughly north-east to south-west across the western boundaries of a number of properties down slope toward Sirius Cove, including the property upon which the figs are located. 4The owners of the upslope, eastern property have applied to the Court seeking orders with respect to the three fig trees and, originally, also sought an order with respect to a fourth tree, now correctly identified as a Cheese Tree ( Glochidion ferdinandi ), on the most southern of the western allotments adjoining their diagonally running western boundary. The application with respect to the Cheese Tree was subsequently not pressed during the course of the proceedings and has been included in the overall dismissal on that basis. 5The fig trees have interlocking canopies and were planted by the present owner of the property upon which they are located in the mid-1990s following the removal by the present applicants of a number of Camphor Laurel trees ( Cinnamomum camphora ) on their property. The fig trees were planted, we are satisfied, for privacy reasons as a consequence of the removal of the Camphor Laurel trees (although the present applicants had also agreed to plant a hedge each along the boundary and subsequently did so - this resulting in the planting of the western of the two Leighton Green hedges). The adjoining property, uphill and to the east, now has the extensive and substantial Leighton Green hedges earlier described - being, relevantly, a hedge which has reached, along the western boundary, a height of ~ 4 m. 6The fig trees are now approximately 9 m high and, with their interlocking canopies, comprise an unbroken vegetated screen approximately 10 m in length. However, as a consequence of the diagonal running of the boundary between the applicants' property and the property upon which the fig trees are located, the perspective view from the applicants' property has a greater visual element arising from the most northern of the three fig trees, that is the fig tree closest to the applicants' house.

[7]

Dr Lamb's evidence 13It is appropriate here to note that Mr Hill, barrister for the owner of the fig trees, objected in court (as he had earlier foreshadowed on site) to the acceptance of Dr Lamb's evidence on the basis that Dr Lamb's claimed area of expertise, visual impact assessment, is an area of expertise without any proper legal foundation. 14After a short adjournment to consider this application, we indicated that, as visual impact assessment evidence (as a general area of expertise) had been accepted by the Court for very many years and that had included Dr Lamb (amongst others) giving that evidence, it was not appropriate for us to make a determination of Mr Hill's application as it raised significant matters of principle for the Court and it was not appropriate to do so in these proceedings and "on the run". 15We expand, but briefly in this decision, our reasons for declining to reject Dr Lamb's evidence. Whether or not this area of expertise is one that is appropriate to be recognised by the Court would require, in our view, proper considered analysis and legal argument, not matters readily available in the structure of proceedings conducted under the Trees Act - being proceedings that rarely extend beyond a single day and which, under Part 2 of the Trees Act, are usually dealt with in their entirety on site. 16We readily accept that, should there be an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against the outcome of these proceedings, that might well be a matter appropriate to be ventilated during such an appeal. However, under the general circumstances in which Trees Act matters are conducted, circumstances applicable in these proceedings, it was neither appropriate nor possible for us to explore that matter. 17There are, however, four observations that can be made about the statement of evidence provided by Dr Lamb. The evidence is, like the curate's egg, good in part and bad in part. 18First, we observe that Dr Lamb's Statement of Evidence comprises, in total, 30 printed pages of which nearly half comprises his curriculum vitae and, of that nearly half, some 12 pages are a list of the multiplicity of advices given or Land and Environment Court cases in which Dr Lamb has been involved. Given that this court is an environmental one, this aspect of his curriculum vitae is entirely unnecessary in its extent and would, more appropriately, be abbreviated and summarised. 19Second, of the 11 and a bit pages of the document that deal with matters that arise, properly, under the Trees Act, a good deal of the material involves Dr Lamb expressing opinions on areas that are clearly outside his area of expertise, including expressing opinions on planning and arboricultural matters - these being areas of expertise in which he claims no competence. We have ignored, in their entirety, all such commentary on matters outside his areas of expertise. 20As earlier noted, we set aside an objection by Mr Hill to admitting Dr Lamb's Statement of Evidence as expert evidence in the proceedings. 21Dr Lamb provided a written Statement of Evidence which, in our opinion, contains a potentially impacting flaw in an understanding of how Part 2A of the Trees Act is to be applied. This flaw arises from his apparent interpretation of the phrases obstructing a view [in s 14F(2)(a)(ii)] and severe obstruction of...any view [in s 14B] as permitting the analysis of the totality of the outlook from any viewing point as constituting a number of separate views rather than as a single composite view comprising the totality of the outlook from that point. 22We are of the opinion, as is discussed in more detail later in our analysis of what can be seen from each of the viewing locations with respect to which relief is sought in the application, that what is observed from those locations is not some multiplicity of separate views depending on the direction in which the eyes of the observer are turned but, for the purposes of the Trees Act, comprise a single view from each such viewing location. 23We note that, on page 6 of his Statement of Evidence, Dr Lamb says, inter alia, under his heading 3(b) Observations with regard to the vegetation in dispute : The vegetation blocks views to the west and south-west from both the ground floor and the first floor of the applicant's residence to a variable extent, depending on the viewing location and direction. 24Further on page 6 of his Statement of Evidence, Dr Lamb says, inter alia, under his heading 3(c) Assessment of severity of obstruction of views : There are views in the northwest, west and southwest directions from the Applicants' ground floor comprising living, dining, kitchen and outdoor decks and from the first floor comprising lobby, master bedroom, balcony and corridor to other rooms. The impact of the alleged hedge is on the views to the south and southwest which is the direction of the most scenic views constituted by headlands of Mosman and skyline of North Sydney CBD to the south and parts of Kirribilli headland, Sydney Harbour Bridge, Sydney City, Sydney Harbour waters and various Bays, and the Opera house to the southwest. The alleged hedge breaks the continuity of the view from south to southwest which the Applicants had previously enjoyed. The result of the alleged hedge is that from some locations on the Applicants' dwelling, where it is still possible to view part or whole of the Sydney Harbour Bridge, it is seen as a solo item without its relation to the adjacent landscape. The hedge effects of the continuous span of the view from Mosman to North Sydney to Kirribilli to the City. 25This comment, implying multiple views from a single viewing point, is in our opinion, a significant misconception of the framework of the statute. Whilst it is self-evident that, from differing viewing locations on a property, there will be different views and that, if there be obstruction of some or all of those views by a hedge, the jurisdictional prerequisite that such obstruction must be severe, required by s 14, must be tested for each of those views prior to embarking on the balancing consideration concerning the interests of the hedge owner required by s 14 or the consideration of any aggregate view benefited to the applicants' property, this being a matter required to be considered as a consequence of s 14. 26However, 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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 27We 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. 28For 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. However, we have had regard to Dr Lamb's analysis of what he considers to be the impact of the fig trees on the relevant aspect of the view from the particular location. 29However, on a more constructive and positive note toward Dr Lamb's evidence, those portions of his Statement of Evidence that are relevant to the matters we do need to consider in these proceedings contain a range of photographs from various of the viewing locations. We observe, as it is of significant relevance in our analysis as required by s 14E(2)(a)(ii), that all Dr Lamb's photographs (save one confined to the trees alone [described as View 5]) are ones addressing the outlook to the south-west and none of them depict the entire panorama available from all the relevant viewing locations. 30Although we have not agreed with all of Dr Lamb's conclusions with respect to the outcome to be drawn from the impacts on the total outlook those viewing locations (as later discussed in detail) because of the balancing of the various factors requiring consideration under Part 2A, his photographs do assist with an appreciation of the outlook from the various viewing locations and with an understanding of our conclusions with respect to them. We acknowledge our reproduction of various of them in this judgement.

[8]

Jurisdictional issues 31There are a number of jurisdictional facts that must be established before there is any requirement to turn to the matters for consideration in s 14E(2)(b) or s 14F - let alone the making of any orders and the nature of such orders that might be made pursuant to s 14D. The range of jurisdictional facts requiring to be established arises from s 14A(1) and s 14E(2)(a)(ii). They are, in order, as follows: (1)Are the plants that are the subject of the application trees within the meaning of the Trees Act [and any definitional extensions contained in the Trees (Disputes Between Neighbours) Regulation 2007]? (2)If the plants are trees, are there two or more trees? (3)Were the trees planted (as opposed to being self-sown or remnants of original native vegetation)? (4)If the trees were planted, were they planted so as to form a hedge? (5)Is there a view from the applicants' property from the point concerning which the application is made and, by necessary inference, what comprises the view from that point? (6)If there is a view, is that view of obstructed by the hedge? and (7)If there is a view and the hedge obstructs it, is the obstruction of that view severe? 32Only if every one of the foregoing questions is answered in the affirmative is there then a requirement to consider the balancing of the assessment factors that are contained in ss 14E(2)(b) and 14F. The first of these is the requirement to balance the interests of the applicant in ameliorating or removing the impact on the view with, amongst tother matters, the interests of the owner of the trees in retaining them. The requirement to do so is contained in s 14E(2)(b), a provision that reads: (b)the severity and nature of the obstruction is such that the applicants' 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. 33As well as this balance being assessed, the Trees Act then sets out, in s 14F, a range of factors requiring consideration before turning to exercising the discretion given by the Trees Act, relevant to this application, through s 14D(1)(b) to determine whether or not orders should be made to remedy restrain or prevent a severe obstruction of a view and if so, what form such order to effect the remedy restraint or prevention is required. 34Of the first four jurisdictional questions [those posed by s 14A(1)], the only element that is in contest here is whether or not the three fig trees form a hedge. 35Mr Hill, barrister for the present owner of the fig trees, contends that the fig trees do not form a hedge. In support of this proposition, he took us to a number of dictionary definitions of the term "hedge". The definitions he relied upon were from the Macquarie Dictionary and the Concise Oxford Dictionary. 36On the other hand, Mr Ireland, barrister for the applicants, submitted that we should take a purposive approach to construction of the legislation and conclude that that which we observed, comprising three trees in a generally linear arrangement with their trunk bases being separated by, perhaps, 2 m or so, should be regarded as a hedge. 37We do not consider that the dictionary definitions to which Mr Hill referred are of particular assistance for the reasons set out below. Indeed, we adopt and apply the approach we set out in Wisdom v Payn [2011] NSWLEC 1012, where we considered whether a tree somewhat away from a planted row of trees could form part of that hedge. The question of what might constitute a hedge was discussed in Wisdom in the following terms: 45...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. 46 Whilst it is clear that the legislation does not invest any maximum height of the trees that might comprise such an arrangement - so that a line of modestly old firs evenly spaced along a driveway that have reached considerable maturity and height might well be a hedge for the purposes of the Act, a purely random planting of trees cannot be so regarded. Certainly, a single tree that is obviously separate and distinctly so (as is the case here) cannot be so regarded. 38There is no doubt that the three trees are in a linear arrangement; are located close to but not directly on the common boundary between the adjoining properties; and have interlocking canopies so that, had we not availed ourselves of Ms McKenzie's height pole during the site inspection to delineate the boundary between the canopies of the northern and of the middle tree, we would have been unable to determine, from casual observation, where the canopy of each ended and that of its neighbour began. 39Indeed, it is our opinion that if we were to adopt the line of reasoning pressed by Mr Hill, it would be necessary for us to conclude that, at some stage in the past, when these three trees were smaller, they were likely to have been a hedge until they reached, say, 3 or 4 m in height but that after further growth, having achieved some unspecified and indeterminate greater height, that hedge would have ceased to be a hedge and become some other vegetated form. Similarly, his proposition that the vegetative skirt formed from the various leaders of the fig trees did not reach the ground and thus could not be a hedge would also lead to the position where, for example, the applicants' Leighton Green hedge on two sides of their property could have its lower vegetation pruned - to lift the hem of its skirt as it were - so that at some unspecified and indeterminate level above the ground and where only the individual trunks of the fig trees could be seen, that which is self evidently now a hedge would cease to be so. 40In our opinion either of these constructions of the legislation would defeat the legislative purpose intended to be remedied by the enactment of Part 2A. 41We are satisfied that these three fig trees at some time in the past necessarily formed a hedge on Mr Hill's definitional approach and that the mere attainment of greater height and maturity so that they do not now have, for example, the neatly rectilinear form of the Leighton Green hedges on the applicants' property does not mean that the three fig trees do not presently constitute a hedge for the purposes of the Trees Act. We are satisfied that the three fig trees do form a hedge for the purposes of s 14A(1)(a) of the Trees Act.

[9]

The scope of the order making power 42As part of our consideration of the alternative proposition as the fallback position advanced by the present and future owners of the property upon which the fig trees are located (noted above), we raised the question of whether or not a we would have power to make orders requiring ongoing maintenance pruning of the most northern tree if the other two trees had been ordered to be removed and thus there remained a single tree which was, self-evidently, no longer a hedge. 43Mr Ireland submitted that such ongoing orders for a pruning of a single remnant of tree would be within power provided that the orders were made whilst that tree formed part of a hedge. In support of this proposition, he relied, inter alia, upon the s 14D(2)(c) which reads: (c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape 44He submitted that the use of the description a tree or trees in this provision meant that an order could be made with respect to a single nominated tree and that, provided that tree was part of a hedge at the time that that order was made, such order could be of an ongoing basis that continued to apply even if the tree, because of the removal of other trees, was no longer part of a hedge. Mr Collins, solicitor on behalf of the incoming owner of the property upon which the fig trees are located, supported this submission. 45Mr Hill put a contrary submission. His submission was that if the effect of orders made pursuant to s 14(2)(a) is the removal of trees so that what remained was a single tree - thus there becoming insufficient trees to form a hedge as required by s 14A(1)(a) to found jurisdiction, the power to make orders was strictly confined to requiring works to be carried out in that vegetation prior to it ceasing to form part of the hedge. 46If we understood his submission correctly, and we consider we do, it would be possible to order the removal of two fig trees and make an order for the pruning of the remaining tree in the hedge but that the power to make such pruning orders was confined to pruning to be carried out while still that fig trees remained part of the hedge. It was his submission that the making of a purported order requiring ongoing intervention with vegetation that was no longer part of a hedge would not be within the Court's jurisdiction pursuant to Part 2A of the Trees Act. 47We have concluded that the position adopted by Mr Hill is not the correct one and that, had we reached a different general conclusion on the application, we would have had the power to make some ongoing order for maintenance pruning or intervention with vegetation that formed part of a hedge at the time the orders were formulated but would no longer form part of a hedge at the time of the required future intervention with that (now no longer hedge) vegetation. We are satisfied that, provided the orders are made at the time the residual tree formed part of a hedge, s 14A clearly envisages orders of an ongoing nature with respect to any or all of the trees that constituted a hedge at the time of making of the orders. To hold otherwise would also be contrary to a purposive interpretation of the legislative intent of the legislation.

[15]

What does it mean? 61The Act requires, relevant to any impact on a view, by virtue of s 14E(2)(a)(ii), that the impact on that view must be severe before the balancing and discretionary considerations of s 14E(2)(b) and s 14F are brought into play. 62The Macquarie Dictionary definition of severe is in the following terms:

harsh; harshly extreme: severe criticism ; severe laws. 2. serious; stern: a severe face. 3. grave: a severe illness. 4. rigidly restrained in style or taste; simple; plain. 5. causing discomfort or distress by extreme character or conditions, as weather, cold, heat, etc.; unpleasantly violent, as rain or wind, a blow or shock, etc. 6. hard to endure, perform, fulfil, etc .: a severe test. 7. rigidly exact , accurate, or methodical : severe conformity to standards. 63The on-line Oxford English Dictionary gives what appears to be the relevant meaning of the word as being: Grievous, extreme 64It 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. The application of the Tenacity principles 65Roseth SC set out in Tenacity Consulting v Warringah [2004] NSWLEC 140 (a planning decision) the planning principles to be applied in an analysis of view impact and view sharing - a case (as is disclosed below in the extracts from his Statement of Evidence) cited by Dr Lamb as being relevant for consideration. 66We therefore consider it appropriate to set out the Tenacity principles and offer a short commentary on their relevance to Part 2A applications under the Trees Act. 67In Tenacity , relevantly, Roseth SC said: 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 views, 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 than 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 as negligible, minor, moderate, severe or devastating. 29.The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 68We concur Dr Lamb's opinion of the relevance of the Tenacit y principles (but only to the extent of the first three of them - the fourth raises planning matters although it might, in very general terms be analogous to elements of matters called up by other specific provisions in Part 2A of the Trees Act). Relevant Tenacity principles have been applied in other Part 2A hedge cases concerning views (see Hough & Anor v Rettenmaier & Anor [2010] NSWLEC 1354 or Ball v Bahramali & Anor [2010] NSWLEC 1334). 69However, we expressly note with respect to the third of the Tenacity steps that the aggregation across the property is not appropriate in abstract. On the other hand, the third sentence in the third Tenacity step is expressly called up by both the second element of s 14F(q) that requires us to have regard to the nature and extent of any remaining view and the first element of s 14F(r) that requires us to have regard to the part of the dwelling the subject of the application from which a view is obstructed .

[28]

The countervailing position for the tree property 85As earlier noted, the property upon which the fig trees are located is currently the subject of a contract for sale. That contract for sale is due to be settled (and the new owner take possession of the property) in late April. However, the position taken by the present owner of the property and that taken by the incoming purchaser of the property are consistent. Essentially, as we understood the evidence given informally during the course of the site inspection together with submissions during the court hearing by their representatives, the application is opposed by both of them, on a number of bases discussed below. 86However, both advocates submitted if we were minded to order any intervention with respect to any of the fig trees, we should confine ourselves to ordering the removal of the more southern two of the three fig trees and order some pruning to the fig tree that would remain, that is the most northern of the three fig trees. 87There are, on the uncontradicted evidence, including our observations during the site inspection, two separate and individually significant practical benefits for the property upon which the fig trees are located for those trees to be retained. 88The first of these is the shading effect that is be provided by the fig trees, particularly by the northernmost of the fig trees, to the private open space of the property upon which the fig trees are located. Removal of the fig trees will adversely impact shading for the tree property (largely but not entirely as there is some other vegetation to the north and built form providing other shading) and significantly lower privacy protection for the tree property. We accept that this shading from the summer sun would be likely to be available during a considerable period of the morning and that, later in the day, when that shading would not be available, shading of at least elements of this private open space would be obtained from the built structure on the neighbouring property to the north and from the house on the fig tree property itself. Although the combined effect of these shading elements is likely to also have the effect of eliminating or virtually eliminating the sun to this private open space as a disbenefit for winter use, as we observed during the site inspection, there is an elevated deck with extensive views on the eastern side of the house that would provide a sunny and sufficiently private open space for use during winter. 89As a consequence, we are satisfied that there is a significant benefit to the property upon which the fig trees are located in having the shade of the fig trees on this private open space to the rear. This was reflected in the evidence of the present owner. In addition, we should not lightly disregard the fact that the shade from the fig trees and the fig trees themselves are aesthetically pleasing. Whilst the shade of the built structures is undoubtedly functionally welcomed during the summer months, the shade from the fig trees would not only be welcomed for the shade itself but for the verdant ambience which accompanies it. 90In addition, we are also satisfied that there is a significant privacy benefit to the rear of the property on which the fig trees are located - with this privacy protection also coming dominantly but by no means exclusively from the northernmost of the fig trees. The privacy protection that is afforded by the fig trees is not only from overlooking from the outdoor deck entertaining area on the applicants' property but also from the balcony from the applicants' master bedroom. This balcony, as earlier described, is significantly larger than a mere Juliet balcony and is of a sufficient size to be used for entertaining purposes (despite it being a balcony from a bedroom). 91Indeed, part of the evidence given on the half of the applicant was given by one of their friends who spoke of not being able to observe as clear a view of Sydney's New Year's Eve fireworks from this balcony as he had enjoyed in the past - with the diminished observation being occasioned by the growth of the fig trees. Whilst that observation concerning the impact on the viewing of the fireworks is a matter for consideration in our assessment of the applicants' desire to improve the south-western outlook from this location, the fact that we have evidence from the applicants' case that this balcony is used for entertainment, at least on some occasions, is also significant evidence in support of there being broader value of all the fig trees for privacy protection to the private open space at the rear of the property upon which they are located. 92Removal of the fig trees would leave the tree property dependent on the goodwill of the applicants in retaining the Leighton Green hedge for privacy protection. This hedge, as earlier noted, has been differentially pruned to a lower resultant height compared to the northern hedge - an entirely permissible activity. However, it demonstrates the dependence that the tree property would have, for privacy protection, on the goodwill of the uphill neighbours if the fig trees were to be removed.

[31]

The Mosman Council Tree Preservation order and Council policy 94As is the practice in applications made under the Trees Act , Mosman Council (the council) was served with a copy of the application and, after the callover before a Registrar of the Court, was also served with a copy of the pre-trial directions made at the callover. Those directions, from the suite of standard directions made at that time, permitted the council to provide such information as it wished that was relevant to this application. Although the council did not take part in the hearing, the council did provide a small bundle of information to the Court and this included applications that had previously been made under the council's Tree Preservation Order by the owner of these trees. 95Although this material was not subsequently separately tendered during the course of the hearing in court, it was referred to and discussed during the course of the site inspections, without objection, and reference was there made to the fact that the council has a policy, in the implementation of its Tree Preservation Order, as noted on one of the documents (an application concerning these trees), of not permitting the removal of trees for the purposes of enhancing views. The on-site discussion had the effect of importing the essence of this material into the evidence as the factual aspects of the site inspection (although dealt with on site informally), including that which is observed, constitute evidence in the proceedings. 96One of the matters that we are required to take into account in proceedings such as these under Part 2A of the Trees Act is the existence of such a Tree Preservation Order and whether any application had been made pursuant to it. We are required to have regard to the Tree Preservation Order and any application made pursuant to it as a consequence of s 14F(d) of the Trees Act - a provision in the following terms: d)whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, 97As it was not a centrally contested element of these proceedings, the only information we have concerning the implementation of the council's policy is the notation to which we have earlier referred - namely that the council does not permit the removal of trees for the purposes of enhancement of views. This notation is quite concise and contains no suggestion of the flexibility of application. In a planning context, the weight that should be given to the council policy was discussed by the former Chief Judge of the Court, McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at paras 88 to 92. 98In that case, the fact that there had been a properly adopted and consistently applied council policy was a matter of sufficient weight to be determinative in those proceedings. 99We are of the opinion that a similar approach is appropriate to be taken to such a policy adopted and applied by the council pursuant to its Tree Preservation Order. From the experience of the various Commissioners who have determined a wide range of cases that have been dealt with under the Trees Act, both under Part 2 and under Part 2A, the position taken by councils as to the basis upon which they would permit the removal of trees has varied widely. We are not aware of there being a broad practice of adopting the position taken by this council with respect to applications to remove trees for the purposes of view enhancement. 100Whilst we would not suggest that the existence of such a policy (as has been here adopted) should be given determinative weight, as to do so would be contrary to the broad intention of the legislation that obviously sets up a mechanism to override such instruments as Tree Preservation Orders (by the insertion of s 6(3)), such a policy expressly responding to and rejecting view enhancement tree removal applications is entitled to significant weight. For completeness, we set out the terms of s 6(3) - it reads as follows: (3)An order under Part 2 or 2A has effect despite any requirement that would otherwise apply for a consent or other authorisation in relation to the tree concerned to be obtained under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. 101In these proceedings, Mr Hill, in his submissions, expressly disavowed any reliance on the provisions of s 14F(d) and, thus, any assistance that his client might have received from such a council policy. He did so in his written analysis by indicating that he submitted that s 14F(d) was "N/A" (not applicable). This is clearly incorrect for the reasons we have set out above. 102However, as we have concluded for the range of reasons dealt with elsewhere, particularly the interests of the owner and future owner of the property upon which the trees are located in preserving the benefits that that property receives from the trees, warrants the refusal of the application (even taking the applicants' case at its highest for the upper level of the dwelling), we do not rely for that outcome, at all, on the matters discussed as founded on s 14F(d) in reaching our decision. 103On the other hand, we do consider it of importance for future applications under Part 2A, where there is a policy of the relevant council under a tree Preservation Order of not allowing removal of trees for the purposes of view enhancement and that policy has been consistently applied by that council, that this is a matter to be given significant (but certainly not determinative) weight in view loss related proceedings pursuant to that Part of the Trees Act.

[33]

The balcony 105With respect to the total view available across a combination of viewing points from the northern to the southern end of the balcony off the master bedroom, the extensive panoramic outlook that remains from all locations on this balcony is that of the built elements and topographic features of the district outlook element of this view. 106It is obvious that 80% or more of the built form and topographic district view to the west, north-west and north is retained and the overall residual view from this point is clearly qualitatively and quantitatively highly attractive [s 14F(q) - second limb]. 107In addition, there remains a significant viewing opportunity of the main elements of the Harbour Bridge from the southern end of this balcony, noting that this is the point where, from the location of the table and chairs, the applicants appear to make regular passive use of the balcony [another aspect of consideration pursuant to s 14F(q) - second limb]. 108As this a balcony off a bedroom, it should not and cannot be regarded as a principal entertaining location in the house [s 14F(r)]. 109To the extent that, on New Year's Eve alone, there might be some particular and specific reason to use the balcony for entertaining purposes and the trees cause an obstruction to portion of the fireworks display on Sydney Harbour, that obstruction is described by Mr Hickie, in an affidavit read for the applicants, in the following terms: 1 I have known Walter and Margaret Haindl for 12 years since our sons started school together. 2 Over this time the Haindl's have entertained my family and I at their house and in particular we have been there to view the New Year's Eve fireworks displays most years. 3 My wife and I were present at their house at [address deleted - privacy protection], Mosman on New Year's Eve 2010 and viewed the fireworks display from their upper floor balcony. 4 I was amazed at the excessive growth of the Ficus trees in the adjoining neighbour's property of [address deleted - privacy protection], Mosman since the last time I was present to watch the fireworks on New Year's Eve 2008. These Ficus trees blocked much of the fireworks display positioned on the Harbour Bridge and within the Harbour. The group of people who were watching the fireworks were forced to crowd into southern part of the balcony in order to get a better but still incomplete view. 5 The Ficus trees have now grown to a height and width that blocks and spoils the view of Sydney Harbour and the Harbour Bridge that I and the Haindl's previously enjoyed, especially on New Year's Eve. 110We do not consider that such a temporally short interruption to that element of the outlook from the balcony to the fireworks - and one that is not a complete obstruction but merely a partial one - can, in itself, warrant removal of the trees.

[39]

Figure 10 125Dr. Lamb's analysis concerning the impact of the hedge on views from the ground floor deck is in the following terms: The Ground Floor deck wraps around the western edge of the dwelling along the kitchen, dining and living rooms. The view affected is of the Sydney Harbour Bridge, Sydney Harbour waters and the Bays, parts of North Sydney locality and parts of Cremorne and Mosman. The view that remains is of a small part of North Sydney and parts of Mosman in the west and northwest directions. The view loss obstruction for this location is considered to be severe. The view loss using the Tenacity Principles is also considered severe as views of scenic icons, waters and land water interfaces are affected. 126The recent pruning of the top of the western Leighton Green hedge on the applicants' property, self-evidently, enhances the extent of the views available on either side of the fig trees that are the subject of the application. The western Leighton Green hedge has been pruned so that it is now approximately half a metre lower than the height of the hedge along the northern boundary of the applicants' property. The nature of the pruning of the northern hedge clearly showed that this was minor pruning of growth from this hedge that had extended above the top of the previously established hedge line. 127However, the hedge on the western boundary has been more severely pruned - opening the top of the canopy of that hedge and exposing elements of the trunk and branch structure of the individual plants comprising it. The top of this hedge element able to be observed from the bedroom balcony made it clear that there was little vegetative cover across the top of that hedge, a position consistent with this pruning involving some height reduction in addition to any maintenance pruning of recent growth. 128As a consequence, from the deck area, there was also some limited district outlook to the Mosman ridgeline in that direction until that outlook was, itself, interrupted by the Leighton Green hedge along the northern boundary of the applicants' property (this hedge element dominates the outlook to the north from this deck area). 129For the purposes of the jurisdictional test in 14E(2)(a)(ii), the totality of these elements of the outlook from the deck comprise the view from the deck. 130It is our assessment that the principal effect of removal of the fig trees would be to create an outlook primarily to the built form of the three properties generally to the west of the applicants' property as well as to the trees in the front of those dwellings to the west and, to some limited further extent, to the district views beyond - see (59) above. There may be glimpses of other aspects (such as portions of the Harbour Bridge) but we consider that these would be minor only. 131We are of the opinion that the extent of severity of any obstruction of a view must be qualitatively assessed as well as quantitatively assessed. This approach is consistent with that in Tenacity . Qualitatively and quantitatively, given that which lies behind the fig trees when coupled with the fact that the applicants choose to retain their own obstruction to the view from this location (caused by the Leighton Green hedge), we cannot accept that this view is severely obstructed.

[42]

Any steps taken by the applicants to prevent the obstruction [s 14F(n)] 135The final matter arising under s 14F that requires analysis (and relates to the nature of the present and past views that exist or existed from the applicants' property) is that arising from our consideration of s 14F(n) requiring us to consider any steps taken by the applicants to prevent the obstruction. 136The fact that the outlook from the various locations described as the viewing points in the application were obstructed, to at least some extent, by a row of Camphor Laurel trees located on the applicants' property at the time the applicants purchased the property is a relevant matter for consideration. This arises as a consequence of s 14F(n) that requires us to consider any steps taken by the applicants to prevent the obstruction. 137The evidence established, at least, that one half of those Camphor Laurel trees were across the boundary of the applicants' property with the property upon which the thick trees are located. 138Although we do not have the evidence of the precise number of Camphor Laurel trees that were removed, the necessary inference, in our opinion, from Mr Haindl's evidence was that some of the Camphor Laurel trees' interruption to the outlook from the applicants' property was to the north of the property upon which the fig trees are located and, as a consequence, must have obstructed some part of the outlook from the applicants' property towards the district elements of Mosman and North Sydney to the west. 139However, most importantly, it was Mr Haindl's evidence that he and his wife were aware that the council's Tree Preservation Order did not apply to Camphor Laurel trees and that they intended to remove them for view enhancement (if they purchased the property as they subsequently did). 140Although it is clear from the council's documents that tree removal for view enhancement of views is not permitted under the Tree Preservation Order for protected trees, this is irrelevant for Camphor Laurel trees. As a result, we consider that the applicants' removal of the Camphor Laurel trees is a matter of no consequence and could not be a factor telling against the application, as appeared to be suggested by Mr Hill on site.