Johns v Breuer

The trees 5The trees are numbered from east to west. Following reports prepared by the parties' arborists, Ms Catriona McKenzie for the applicant and Mr David Ford for the respondent, an additional tree, T1A, another Celtis, is included in the application. There are other trees, including a Eucalypt to the west of T10, and a large Celtis at the western end of the parking area, that are not subject to the application. 6The arborists agree that the trees are all healthy, semi-mature specimens. Their heights range from about 6.4m to 11.1m (RL 79.82 - 81.17). The arborists agree that if the trees were reduced to the height of the timber fence along the boundary (RL 75.56) they should be removed as pruning to that height would result in extensive dieback or decline. It was agreed that reducing the height of the Leylands by up to 3.5m or so would not be especially detrimental to their health or appearance. In regards to the Celtis, both arborists consider that T1 and T1A could be thinned/ reduced; Ms McKenzie considers T5 should be removed as it will grow to a point where it obscures the view; Mr Ford considers T5 and T9 could be thinned and reduced as for T1/T1A. 7At their current height, all trees in question are exempt from Woollahra Council's Tree Preservation Order.

The viewing points 8The nominated viewing points are north/north-east facing windows of the ground floor living rooms and the first floor bedrooms and their associated living areas. V1-V6 are on the ground floor and V11 -V16 are on the first floor. The viewing locations are numbered from east to west. The views were also observed from the roof terrace and associated living areas. 9V1 and V2 are windows of a formal sitting room presently housing a piano. When seated at the piano, I observed the view through V1 to be a filtered view through T1/1A of Rose Bay. The view through V2, a secondary and angled window to V1, is to the west of north and was mostly obscured by T2-4. 10V3 and V4 are large windows in the central portion of an enclosed verandah used as a sitting room adjoining the formal dining room. When seated behind W4 the distant building line with the water beyond was visible through gaps in the foliage of T5. When standing, the Leylands obscured the majority of the view. 11V5 and V6 are at the western end. When seated at a desk near the western end of the room I noted that the view was obscured by the Leylands but only marginally by T9. Similarly, standing views were obstructed by the Leylands but much less so by the Celtis. 12The nominated first floor viewing points are directly above the ground floor viewing positions. I noted the impact from these windows to be very similar to those on the ground floor. T9 provides some obstruction from V15 and V16 however that view is of the large Celtis at the western end of the parking area. I also noted that T1/1A provide some screening of the covered entrance to the Breuer dwelling. V15 and V16 are north-facing windows of the main bedroom; V13 and V14 are an enclosed verandah used as a secondary study. 13For completeness, the view was observed from the roof top terrace. This space is accessed through rooms built into the roof space. There are distant views to Bondi to the east from windows above the stairs leading to the terrace. The paved floor of the terrace is on a noticeable slope. The views are as described in [1] and extend across to Manly in the distance. Only a very small portion of the view was obscured by the tops of the Leylands. From this position, several relevant buildings were pointed out; these include a block red brick units to the NNW of the Johns property.

Planning evidence 14The parties engaged planners to prepare expert reports. Mr Ingham for the applicant, and Mr Moody for the respondent, attended the hearing. It was agreed that Mr Ingham's comments about sunlight were not relevant to these proceedings. The planners differed in their assessment of the severity of the impact on the views; Mr Moody contends the impact is not severe and Mr Ingham's position is that it is severe. 15During the hearing, several alternative heights were discussed and measured using nominated branches of T1A. The parties' amended heights were determined to be RL 76.38 for the applicant and RL 77.2 for the respondent.

Jurisdictional tests 16In applications made under Part 2A of the Trees Act, there are a number of jurisdictional tests to be satisfied before the Court's power to make orders is engaged. 17Section 14B(b) enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction to any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which Part 2A applies. The trees must be on adjoining land. 18Section 14A describes the trees to which Part 2A applies. There must be a group of two or more trees that are planted so as to form a hedge, which rise to a height of at least 2.5m and are on appropriately zoned land. 19Section 14C specifies the notice to be given by an applicant and the circumstances where the Court may direct otherwise. 20Section 14E(1) requires that the Court be satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the trees and that s 14C has been complied with. Of significance is s14E(2)(a)(ii). This section states that the Court must not make an order under Part 2A unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicants land. If s 14E(2)(a) is satisfied, then the Court must consider s 14E(2)(b). This section states that the Court must not make an order unless it is satisfied that the severity and nature of the obstruction is such that 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 Part 2A. 21Balancing the interests of the parties inherent in s 14E(2)(b) requires consideration of a number of discretionary considerations in s 14F. 22If the balance is tipped in the applicant's favour, s 14D(1)(b) enables the Court to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of any view from a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

Submissions and findings 23There is no dispute between the parties that the tress form a hedge for the purpose of Part 2A and that appropriate notice was given. The Celtis trees may be self-seeded but no evidence was produced to say they were not planted. While neither party raised this issue in regards to satisfaction of s 14A, as considered in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [27] in taking a purposive approach to the interpretation of the Act, I am satisfied that sections 14A and 14C are met. 24There was some minor debate about the extent to which an agreement was sought however given the comments on 'reasonable effort to reach an agreement' by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [191]-[196] and also considered in Ball v Bahramali & Anor [2010] NSWLEC 1334 at [40] - [45], I am satisfied that there has been an effort to reach an agreement to the level required by s 14E(2)(1). While not relevant to the trees subject to this application, correspondence tendered by the respondent shows an earlier request by Mr Johns to Mr and Mrs Breuer to prune some pencil pines that were planted generally in the position where the Leylands now grow.

The severity of the obstruction - submissions 25Both parties' advocates raised the planning principle on view sharing published in Tenacity Consulting v Warringah [2004] NSWLEC 140 as being relevant to the severity or otherwise of the impact on the views. 26Mr Speed, Mr Johns' solicitor, contends that while the view corridor available from the ground floor is more restricted than the view available from the roof terrace, it is nonetheless substantial. He argues that the view of Shark Island and the harbour beyond is iconic, and as noted in Tenacity, water views are valued more highly than views of land. In qualitative terms he considers the impact of the trees on most viewing points to be devastating and for others to be severe. 27In regards to from where the views are seen, he submits that the ground level rooms are the principal living rooms used frequently by his client and his family for entertaining and private use. The first floor rooms are used occasionally. Mr Speed contends that if the trees were not there and the view was able to be seen, the ground floor rooms would be used more often. 28With respect to Mr Breuer's concerns about privacy, Mr Speed argues that the area overlooked by the Johns property is principally a parking area and that there is no direct overlooking of the Breuer dwelling at is set to the east of the main field of view and some distance from the Johns property. In support of this contention he cites Coleman v Scern; Dunn v Scern [2011] NSWLEC 1146 at [44]-[46]. 29In considering the balancing of needs, he considers that T1 and T1A can be retained with pruning to enable views from the Johns' property but retain the screening they provide for the Breuer property. However, trees 2-9 should be removed as they severely obstruct views from his client's property. The applicant's preferred height limit for any replacements is a maximum of RL76.38 (as amended at the hearing). 30Ms Duggan for Mr Breuer argues that s 14E(2)(a)(ii) is not satisfied, that is, the views from the Johns' property are not severely obstructed by the trees subject to the application. She contends that the main view to the northeast is impeded with or without her client's trees because of the residential flat building in Drumalbyn Street and the large Celtis at the western end of the parking area. She also contends that the corridor is narrowed towards the east by the respondent's dwelling. 31In applying the Tenacity steps, Ms Duggan contends the views are across a side boundary and the viewing points are from rooms not frequently used. She considers standing views are more reasonable to consider than seated views. She argues that the Johns family are more likely to use the living areas that adjoin the pool and the tennis court. 32Ms Duggan submits that if any remedy is ordered, it should be limited to only those parts of the hedge deemed by the Court to be severely obstructing a view and to those particular parts of the view - not the totality of the view. 33In regards to the views available to the applicant she contends that there are uninterrupted views from the roof terrace, as well as views of Bondi from the top storey. Ms Duggan also argues that apart from the boundary in contention, the applicant has wrapped his property in landscape including several large and extensive hedges. 34In regards to the impact of the loss of trees on her client's property, Ms Duggan submits that apart from the loss of privacy, the removal of the trees will increase the visual impact of the Johns' dwelling and the removal of trees to the extent sought would have an unreasonable impact. In addition, the loss of the landscape setting will reduce the amenity of her client's property for some years to come as the replacement trees will take some time to grow. She contends that her client's offer to keep any replacement trees to RL77.2 is more than reasonable and lower than RL78.53, a level sought by Mr Johns in 1992 in regards to the previous trees.

The severity of the obstruction - findings 35I am satisfied that overall, there is a severe obstruction of the views to the north east from all of the nominated viewing positions as a consequence of the Leyland Cypress trees T2, 3,4,6,7 and 8 as well as Celtis T5. While there are some filtered views through T5 from some positions, given its central location, I am satisfied it reaches the threshold of severity required to engage the Court's jurisdiction. I am not satisfied that the Celtis, T1, 1A, and 9 are causing a severe obstruction of any of the views. Therefore as s 14E(2)(a)(ii) is satisfied for the Leyland Cypress and T5, I must consider s 14E(2)(b) and therefore, s 14F. 36The relevant considerations under s 14F are as follows: (a)The trees in question are close to the common boundary but entirely located on Mr Breuer's land. (b)The trees were planted after the construction of Mr Johns' property and appear to have replaced trees that were in existence when Mr Johns moved in. (c)The trees have grown to their current size during the time Mr Johns has owned his property. (d)As stated above, the Leyland Cypress trees are exempt from Woollahra Council's Tree Preservation Order (TPO) and would not require council permission for their removal should Mr Breuer choose to have them removed. T5 is currently less than the height required to engage the TPO. (e)It was drawn to my attention that a restrictive covenant applies to Mr Breuer's property restricting the erection of buildings and other structures on parts of his land and otherwise restricting the height of any construction that may interfere with views from Mr Johns' property. (f)The trees have no historical, cultural, social or scientific value. (g)The trees make a negligible contribution to the local ecosystem. Celtis are identified as an environmental weed in some local government areas. (h)The trees contribute to the scenic value of the Breuer property and screen the Johns property. (i)The trees have little intrinsic value to public amenity, as they cannot be viewed from the street or readily from any other public space. (j)There is no evidence of their importance for soil stability and so on. (k)I agree with the arborists in that pruning the trees to amended levels would be detrimental to their health and structure. (l)The trees contribute to Mr Breuer's privacy and landscaping. However, the area most exposed to overlooking from the Johns property is Mr Breuer's extensive parking area. The pool beyond is covered and the tennis court below is down slope and somewhat screened by landscaping. The Celtis T1 and T1A provide satisfactory screening of the front entrance to Mr Breuer's dwelling, which I note is under a covered carport. Mr Breuer's dwelling is to the east of the block and not in direct view from the nominated viewing positions on Mr Johns' property. (m)As considered elsewhere, the views from Mr Johns' property are partially obstructed by the large Celtis at the western end of Mr Breuer's parking area as well as by buildings to the north and east. (p)The Leyland Cypress are evergreen; the Celtis are deciduous. (q)The extent and nature of the views are discussed elsewhere. (r)The principal areas from where the views are obstructed are living areas positioned to take advantage of the views that would have been available when the applicant's house was constructed. 37After considering the discretionary matters in s 14F I am satisfied that the severity of the obstruction is such that the applicant's interest in having the obstruction removed and restrained outweighs any other matters that suggest the undesirability of interfering with the trees. That is, s 14E(2)(b) is satisfied and the Court's power to make an order under s 14D is engaged. 38Specifically, the views obstructed by the Leyland Cypress trees and T5 are desirable views of Rose Bay and the harbour beyond. As stated above, the Johns dwelling appears to have been sited on the block to take advantage of the view. Despite the front entrance to the dwelling being on the north-western side, I do not accept that the views are across a side boundary. I also accept Mr Johns' statement concerning the frequent use of the ground floor living areas. While there are undoubtedly uninterrupted and expansive views from the roof terrace, its sloping floor and indirect access from other parts of the house make it an area of occasional use only. I am not satisfied that Mr Breuer's privacy will be significantly compromised by the removal of the Leylands and T5 and their replacement with another species. 39Orders will be made for the removal of trees 2,3,4,5,6,7 and 8, as pruning is not appropriate. No orders will be made for the removal of Leyland Cypress T10, as it does not severely obstruct any view from the applicant's property. If Mr Breuer chooses to remove it, there is no impediment to his doing so at his expense. 40Given the loss of amenity to the Breuer property, it is appropriate to order the replacement of the seven trees with a suitable species capable of being reasonably and practically maintained at a nominated height. The choice of species will be a matter for Mr Breuer. It is also reasonable that seven specimens of an advanced size be planted. I consider a height of between 3 and 3.5m (measured from the top of the root ball) to be adequate. 41The critical difference between the parties is the height to which any replacement planting should be maintained. On the evidence before me, I am satisfied that a height of RL 76.4 is appropriate. This is an effective height, when measured from the base of the wall on the respondent's property at the base of T1, of 3.8m. Orders will be made for the ongoing pruning of the replacement trees to whichever is the higher measurement. 42In terms of who should pay, I note Mr Johns' agreement to contribute a sum not exceeding $10,000 for the removal and replacement of the trees, and the subsequent sharing of the pruning costs. In the circumstances, this is a generous offer and unusual in these matters. I see no reason why the Court cannot agree to these terms. Should Mr Bauer require additional trees at a larger size, he shall be responsible for the additional cost. In terms of the ongoing pruning, 43While some selective thinning of the Celtis T1, 1A and 9 would be reasonable, I am not satisfied that any orders can be formally made for those trees at this stage, as they do not severely obstruct any views from the applicant's dwelling. However, as discussed in Hinde v Anderson & anor [2009] NSWLEC 785, if the circumstances change, a fresh application can be made.

Orders 44As a consequence of the forgoing, the Orders of the Court are: (1)The application is upheld in part. (2)Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the Leyland Cypress trees, 2, 3, 4, 6, 7 and 8 and Celtis T5 numbered on the survey plan attached to the report of Mr David Ford dated 20 March 2012. The stumps are to be ground to a depth of 200mm below grade. If additional trees are removed, they must be shown on the tax invoice as a separate item. (3)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The applicant is to provide all necessary access for the works to be done safely and efficiently on three working days notice. (5)Within 90 days of the date of these orders, the respondent is to purchase and plant replacement trees of a species capable of being maintained at a maximum height of RL 76.4 or 3.8m when measured from the base of the wall on the respondent's property (whatever is higher). The replacement trees are to be between 3.0 and 3.5m tall when measured from the top of the root ball. The applicant's contribution shall be limited to seven replacement trees. Any additional trees are to be shown as a separate item on the tax invoice. Similarly, the cost of planting any additional trees is to be shown as a separate item. (6)Orders (2) and (5) must be complied with within the designated timeframe otherwise order (7) lapses. (7)The applicant is to reimburse the respondent the cost of removing the seven nominated trees and their replacement with seven advanced specimens within 21 days of the receipt of itemised tax invoices for the completed works. The applicant's contribution is to be capped at $10,000. (8)The respondent is to engage and pay for an AQF level 3 horticulturalist/ arborist/ landscape contractor, to prune the trees to the nominated height. This pruning shall be undertaken at such intervals as may be necessary to maintain the trees at that height. (9)The applicant is to provide all reasonable access for the pruning work to be carried out safely and efficiently on three working days notice. (10)The applicant is to reimburse the respondent 50% of the cost of the pruning within 21 days of the receipt of a tax invoice for the completed works. (11)Exhibit 4 is returned; all other exhibits are retained.

J Fakes 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: 19 April 2012