Robert Andrew Vagg (First Respondent)
Frances Elizabeth Vagg (Second Respondent)
Representation: Counsel:
A Pearman (Applicant)
M Galvin (Respondents)
[2]
Solicitors:
Landerer & Company (Applicant)
Piper Alderman (Respondents)
File Number(s): 2019/237025
Publication restriction: No
[3]
Judgment
COMMISSIONER: The applicant and the respondents enjoy expansive water views to the east and south east from their elevated vantage in Lavender Bay. These views include the Sydney Harbour Bridge, the Opera House and the CBD skyline. When the applicant, Ms Hyde, occupied her property in early 2011, the view from her rear patio and parts of her adjacent living room included all of the Opera House and a part of the interface with the surrounding water.
The respondents, Mr and Mrs Vagg, have lived in their adjacent property since about 1992, after redeveloping the original purchased dwelling into a duplex. The original dwelling previously located on Ms Hyde's property was also redeveloped into a duplex prior to her occupation, and both parties live on the ground floor, with each property including a mid-sized garden on a similar level. The common property boundary extends from approximately west to east.
Growing adjacent, and parallel to the common side boundary on the respondents' property, is a row of 22 Camellia sasanqua 'Setsugekka' (the trees), which extend from the rear of the respondents' residence to the eastern boundary. Based on copies of comparative photographs provided in the case file, and on my observations at the onsite hearing, these trees have grown over the duration of Ms Hyde's occupation, such that they currently block parts of the views initially available to the applicant.
In an attempt to regain these views, Ms Hyde submitted an application, pursuant to s 14 B of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).
[4]
Onsite hearing
The hearing commenced in Mr and Mrs Vagg's rear garden with an inspection of the trees. Based on their relative heights, the trees may be divided into two groups. Trees 1 - 13 are at the western end of the row, and are noted in a report (Exhibit 3) dated 20 November 2019, by Ms McKenzie, arborist for the respondents, as Hedge 1. Trees 14 - 22 (Hedge 2), closest to the waterfront, have been maintained at a height lower than Hedge 1, reflecting the downward slope of the land towards the east.
Representations were made by Mr Galvin, Counsel for the respondents, about the importance of the trees for the respondents' privacy and for shading, and the significance of the garden for Mrs Vagg, in particular its role in providing a peaceful setting where she gains enjoyment from the vegetation and associated ecosystem benefits.
The Court moved to Ms Hyde's property, where an inspection of the views was conducted from viewing spots V1 - V4. V1 is positioned at the rear of the centre of the patio. V2 is nearby, positioned two or three steps higher at the front centre of the adjacent living area, while V3 is about five metres towards the north-west, within the living room. V4 is also on the northern side of the dwelling, a few metres west of V3, and currently occupied by the kitchen table. The living room and kitchen are seamlessly integrated, such that, as in many previous cases with similar circumstances, the kitchen is considered part of the living area.
Both parties assembled in the applicant's living room for submissions. Ms Hyde was represented by Ms Pearman, of Counsel, and her instructing solicitor, Ms Spizzo, along with Mr Paroissien, arborist. Mr and Mrs Vagg were represented by Mr Galvin and Mr Riddell, solicitor, and supported by Ms McKenzie.
Ms McKenzie acknowledged and agreed to be bound by the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedures Rules 2005. No report was provided by Mr Paroissien, and he made no acknowledgment of the Expert Witness Code of Conduct, but the two arborists had worked collaboratively on site for the collection of tree height measurements on 29 October 2019. These measurements were subsequently used in Annexure B of Ms McKenzie's report, accepted by both parties, and, should orders be made, I may rely on these as a baseline.
From Annexure B of Ms McKenzie's report, the overall hedge length is approximately 13.7 metres, with Hedge 1 measuring 8.5 metres and Hedge 2 5.2 metres in length. At the western end, adjacent to the dwelling, the trees in Hedge 1 are about 2.8 metres tall, rising, due to the slope of the land, to about 3.34 metres tall at its eastern end. Hedge 2 trees are about 2.84 metres tall where it terminates at the eastern end, and approximately 2.66 metres tall at its western end, where it meets Hedge 1.
The applicant's proposed orders (modified from the initial application to make reference to T1-T13 and T14-T22) are as follows:
"1. Trim and maintain the Harbour Side Hedge 2, T14-T22, to a height not exceeding 2.2 metres.
2. Trim and maintain the House Side Hedge 1, T1-T9, to a height not exceeding 2.5 metres."
The respondents did not propose alternative orders in either of the affidavits submitted by Mrs Vagg, dated 15 and 26 November 2019 (Exhibits 1 and 2 respectively), but resist any agreement with respect to intervention with the hedge, and submit that the application be dismissed.
[5]
Jurisdictional requirements
In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].
[6]
Do the trees form a hedge?
The first test is s14A(1), that is, are the trees planted so as to form a hedge for the purpose of the Act?
Section 14A(1) states:
(1) This Part applies only to groups of two or more trees that:
(a) are planted (whether in the ground or otherwise) so as to form a hedge, and
(b) rise to a height of at least 2.5 metres (above existing ground level).
Based on height stick measurements taken during the Court's inspection of the respondent's rear garden, I noted that all trees in the hedge exceeded 2.5 metres in height. It was clear to me, and acknowledged by both parties, that they had been planted so as to form a hedge, and thus s 14A(1) is satisfied.
The next step is to assess the severity of the obstruction of all or any of the views from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a)(ii) states:
(2) The Court must not make an order under this Part unless it is satisfied that:
(a) the trees concerned:
(i) …
(ii) are severely obstructing a view from a dwelling situated on the applicant's land.
Ms Pearman challenged Ms McKenzie's capacity to provide comment on the extent of severity of the view obstruction, as she had noted no qualifications or established expertise in the area of visual assessment of views. I accept this contention, and will make my determination on the relative impact of the view obstruction, without consideration of Ms McKenzie's analysis.
In considering the impact of a view obstruction, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and this case was cited by both parties.
The first three steps of the four step process are considered relevant to Part 2A matters, and are noted by Roseth SC at [26]-[28] of Tenacity.
"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."
The obstructed views, which are gained across the common side boundary, include a small portion of the Sydney Harbour Bridge and much of the Opera House.
In applying the Tenacity principles to this hedge, Ms Pearman submitted that the status of the Opera House as an "internationally significant icon" is such that an obstruction of views of it by the hedge, justifies the classification of this obstruction as severe or even devastating.
With consideration of the fact that the Court sets a high bar when assessing the severity of a view obstruction, and that the second step of Tenacity notes that "the expectation to retain side views and sitting views is often unrealistic", Ms Pearman cited Kennard v Fite [2019] NSWLEC 1327 (Kennard), where I had gained supplementary guidance from Holland v Bell [2017] NSWLEC 1322 at [12]-[13].
Ms Pearman contended that the Camellia hedges in the respondent's property should be considered "similar to a wall in their visual effect', as I had found in Kennard [27]-[28].
I am, however, not persuaded by this argument, as the site circumstances in Kennard, which involved a towering row of Leyland Cypress trees, are quite dissimilar to the situation in this case.
Ms Pearman stressed that the nominated viewing points from the living area, and the adjacent patio (V1 - V4), should be prioritised, consistent with the guidance provided by the third step of Tenacity where Roseth SC notes at [28], that
"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)."
To the contrary, Mr Galvin submitted that the view obstruction is far less than severe, as only a very small part of the view is restricted, that the applicant retained outstanding harbour and Harbour Bridge views, and that consideration of the interface between land and water with respect to views of the Opera House was not relevant. This last contention is contradicted by Roseth SC at [26] of Tenacity, however.
Mr Galvin cited Tenacity as well as Haindl v Daisch [2011] NSWLEC 1145 (Haindl), to support the respondents' position that the obstruction of views resulting from the hedges was not severe, but in a general sense only, with no reference to specific paragraphs in either case.
The facts and circumstances in Haindl are dissimilar, in that any 'iconic' views, in that case the Harbour Bridge, were not in close proximity, and the applicant had more obstructed views upon purchasing their property, than at the time of the application. Further, there were specific biodiversity benefits provided by the Fig trees, the main subject of Haindl, against which any determination of 'severe obstruction of view' was balanced, whereas these Camellias provide very minor biodiversity benefits.
Mr Galvin submitted that because the views, allegedly obstructed by these Camellia hedges, are gained across a side boundary, they should not necessarily be available to the applicant. This issue is addressed at Tenacity [27] where Roseth SC notes; "For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries".
I, however, concur with the Applicant's submission in which, at par 30 (Exhibit A), Ms Pearman notes that the views "are east and south-east and so partially across the common side boundary", as the view towards the Opera House is visible mainly across the rear of the side boundary from the nominated viewing spots. In any case, Roseth SC does not say that views across side boundaries cannot be protected, merely that it is more difficult.
Mr Galvin submitted that the hedge dimensions had not changed since Ms Hyde's occupation, and that there was "minimal" reduction from the view apparent in the 2010 sales brochure relative to that presently available from similar viewing points in Ms Hyde's living areas. Further, he noted the marked reduction in privacy and shading that Mr and Mrs Vagg would suffer from any intervention to the hedge.
In her final submission, Ms Pearman contended that the land/water interface should be taken into account with respect to views of the Opera House, as s 38 of the Land and Environment Court Act 1979 provided the Court with discretionary powers to do so. She also suggested that the hedges were not only higher than in 2011, but that the higher Hedge 1 extended further towards the east than was the case shown in the 2010 promotional photographs.
Based on a comparison between the hedges shown in these original sales promotion photographs and the visual evidence apparent on site, and confirmed by a close inspection of historical pruning wounds near the middle of the overall hedge row, I became convinced that Hedge 2 had been allowed to grow taller at its western end in the interim, such that about 1.5 metres of the original Hedge 2 had now reached the height of Hedge 1, and effectively become part of Hedge 1.
She concluded her submission by asserting that the hedge can be lowered to reclaim the views formerly enjoyed by Ms Hyde, while still providing privacy, and only marginally reducing the shade available to the respondents, and that the benefit to Ms Hyde thus gained outweighed the reduction in both privacy and shading for Mr and Mrs Vagg.
The extent of the view obstructed by the hedge, when considered quantitatively, is relatively small. When viewed qualitatively, however, through the lens of the first step of Tenacity, the obstruction of views is significant, and of great importance to Ms Hyde. Though the impact of the obstruction is not marked from V1 nor from V2; it is from both V3 and V4, both sitting and standing.
From the evidence adduced, I accept Ms Pearman's submission that the obstruction of the view of the Opera House, while not devastating, is severe, particularly given that Roseth SC at Tenacity [28] notes "it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House" as the example of qualitative analysis. This determination is so, notwithstanding that those views are obtained across the common boundary.
In summary, even though Ms Hyde enjoys a near whole view of the Harbour Bridge, and extensive water views, the iconic nature of the Opera House is of such "international" significance, that obstruction of the view of much of this object by the hedge, from at least one of the viewing spots in the applicant's living area, relative to the superior view she enjoyed at the time she purchased her property, is a severe obstruction.
With reference to Tenacity at [28], unlike Ms Pearman, I do not accept that the impact of the obstructed view is severe for the whole of the property, but I am nonetheless satisfied that the evidence enlivens the Court's jurisdiction at s 14E(2)(a)(ii).
As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:
(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.
In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:
(a) The hedge is located in the respondents' rear yard parallel and adjacent to the common boundary, and extends eastward from close to the applicant's dwelling.
(b) The trees were planted prior to the applicant's occupation, probably about 20 years ago.
(c) The trees have grown to their current heights since the applicant's occupation of the property in 2011.
(d) Pruning of the hedge does not require permission under North Sydney Council's Tree Management controls under its Development Control Plan.
(e) No evidence was presented with respect to heritage status of the trees, nor the site.
(f) The hedge has no significant historical, cultural, social or scientific value.
(g) The hedge is likely to make only a minor contribution to biodiversity, even though the trees may provide some food for fauna, particularly birds. They are unlikely to provide habitat of note.
(h, i, j) The trees make only a minor contribution to the natural landscape, and are not important in terms of scenic value of the land on which they are situated nor the immediate locality. Similarly, they provide negligible contribution to public amenity, nor are they relevant in terms of soil stability
(k) Healthy Sasanqua trees may be considered a fairly robust species which are normally capable of withstanding repeated pruning without suffering a significant impact on their health and condition, and they are often hedged. In concluding his submission, Mr Galvin opined that I should accept Ms McKenzie's assertion, at par 15 of her report, that Camellias normally exhibit slow regrowth after hard pruning.
○ Based on the expertise I bring to the Court, I disagree, and suggest that the primary reason for slower than average regrowth in this context, should that in fact be so, is that the trees are pruned too frequently, allowing insufficient time between pruning episodes for them to recover and maintain strong vigour. Put simply, the rate of regrowth recovery after pruning will normally be slower the more frequently the height is pruned. Ms McKenzie, in fact notes this at par 15 of her report; "It is preferable to allow the hedge to have significant growth between pruning episodes to ensure vigour is maintained without loss of privacy and amenity."
○ Were they to be pruned lower less regularly, and thus allowed to develop more regrowth, the health and vigour of the trees is likely to be enhanced, and they are likely to infill lower in their canopies more effectively. Mrs Vagg noted in her affidavit that she was concerned about the lack of internal regrowth, and thus hedge density, in this lower canopy region.
○ Painting of Steriprune onto pruned branch stubs is a horticultural practice which has been superseded for many decades, given that a tree's ability to minimise the impact of detrimental organisms which may colonise pruning or other wounds, is primarily a function of the degree of tree health and vigour, and there is negligible benefit gained from the application of ostensibly protective sealants.
[7]
Conclusions
Pruning of the hedge will be ordered so that views are regained for the applicant, while retaining most of the hedge's benefits of privacy and shading. This will result in minor loss of amenity or environmental benefits for the respondents, which is outweighed by the significant benefit gained by the applicant.
Though Camellia sasanqua are tolerant of repeated pruning, the cumulative impact of repeated foliage removal results in tree stress in the medium and long term. Less frequent pruning at a lower level, which would allow for the development of taller regrowth, would be beneficial to tree health, and likely enhance vigour and longevity of the trees.
In general, the default position in Part 2A matters under the Act, when orders are made for intervention on the trees, is that the financial responsibility for the required works shall also rest with the respondents, unless there are reasons why they should not.
As noted in s 14F(n), Mr and Mrs Vagg have for many years resisted pruning the hedge to assist Ms Hyde, they were aware that the applicant's view was obstructed, and had ample opportunity to reduce the severity, prior to the onsite hearing. In these circumstances, I find no reason why the cost of the ongoing hedge maintenance should not fall on the respondents.
[8]
Orders
As a consequence of the foregoing, the orders of the Court are:
1. The application is granted.
2. Within 45 days of these orders, the First Respondent and the Second Respondent must:
1. Prune the Camellia trees at the eastern end of the House Side Hedge 1 down to the height of the Harbour Side Hedge 2 so that the length of Hedge 1 is reduced by 1.5 metres, such that Hedge 1 then becomes 7 metres in length and Hedge 2 is thus lengthened to 6.7 metres.
2. Prune the top of this 7 metre long House Side Hedge 1 to a horizontal line based on a height at or below 2.3 metres above ground level, measured from the western end (adjacent the house).
3. Prune the top of the 6.7 metre long Harbour Side Hedge 2 to a horizontal line based on a height at or below 2.4 metres above ground level, measured at the eastern end (adjacent the rear property boundary).
1. Pruning as specified in Order (2)(b) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.5 metres above ground level, measured from its western end (adjacent the house).
2. Pruning as specified in Order (2)(c) shall be repeated in March and September of each year. The maximum height of this hedge must never protrude higher than a horizontal line equivalent to 2.6 metres above ground level, measured from its eastern end (adjacent the rear property boundary).
3. The work required under Orders (2), (3) and (4) must be carried out:
1. at the expense of the First Respondent and the Second Respondent;
2. using the services of a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances; and in accordance the Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016.
1. The applicant is to provide all reasonable access to the respondents' contracted arborist or horticulturist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing.
2. Should the Camellia hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at lengths and heights which do not exceed those specified in Order (2).
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 January 2020
(l) The hedge provides privacy from the applicant's property for the respondents, and shading, though to a minor extent in summer, when shade is most valued. It also contributes to garden design and the amenity value of the garden. The extent of additional pruning required to remedy the view obstruction suffered by the applicant, is sufficiently minimal to result in only a minor reduction of either privacy or shading for the respondents. Paradoxically, the pruning required to reduce the length of the house hedge (by 1.5 metres) is likely to result in increased internal regrowth, and thus hedge density, and thus improve the role of the hedge as a privacy screen.
○ The respondents submitted that any lowering of hedge height would be especially impactful in relation to overview from a property located adjacent to the applicant to the north, where a deck extension was constructed after 2011. I place little significance on this concern, however, as any privacy consideration relates primarily to overview from the applicant's property. In any case, this deck extension to the north was approved by North Sydney Council, and Mr and Mrs Vagg have enjoyed privacy from the hedge for decades prior to the installation of this deck extension. In a location like this, one must expect residents in surrounding properties to make property alterations to exploit the magnificent harbour views.
(m) There is a pillar on the applicant's patio which obstructs views towards the south-east. As the pillar is relatively narrow, however, the view obstruction it imposes is minor. The supporting structure of the south-east corner of the house, and the rear sliding doors, also create view obstruction from parts of the living area, but thoughtful house design has reduced this impact.
(n) Based on correspondence provided to the Court, Ms Hyde has made various approaches to Mr and Mrs Vagg, requesting pruning of the hedge, and both parties participated in an unsuccessful mediation session organised through a Community Justice Centre.
○ Over many years, the respondents appear to have made only isolated and temporary steps to prevent or rectify the obstruction.
○ Rather than taking genuine measures to address the issue, the respondents chose to proceed to hearing, notwithstanding that such action risked relinquishing control and management of their hedges to the Court.
○ Section 14E(1)(a) of the Act is thus satisfied.
(p) The trees are evergreen.
(q) The obstructed view is primarily the Sydney Opera House and the associated land/water interface. It is the iconic nature of this object, and the circumstances of this situation which make this obstruction severe. The remaining view includes the Harbour Bridge and vast water views.
(r) The applicant's ground floor living areas are subject to the view obstruction.