Karam v Meredith

Jurisdictional matters and the assessment framework 10The application is made under Part 2A of the Act. There are a number of jurisdictional tests that must be satisfied before the Court's jurisdiction is engaged. 11Section 14A(1) states: (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 12Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land. 13Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located. 14Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1). 15Of significance is s 14E(2). This states: (2) The Court must not make an order under this Part unless it is satisfied: (a)the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 16If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D.

Findings - Section 14A 17Notwithstanding the uncertainty of the diagram in the application with respect to the number and location of trees, with the benefit of the site inspection, I am satisfied that the trees satisfy the test in s 14A(1). It was agreed that there are two hedges: hedge 1comprises trees 1-9 along the north-western boundary of the respondent's property and hedge 2 comprises trees 10-13 along the northern boundary. Both hedges satisfy the provisions of s 14A(1).

Findings - Section 14C 18During the hearing, Ms Irish, counsel for the respondent, raised the jurisdictional test of s 14C(1)(a). She contends that the respondent was not given 21 days notice of the lodging of the application and the terms of any orders sought, and as such, the Court has no jurisdiction to make an order as specified in s 14E(1)(b). Relevantly this section states: 14E Matters to which the Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. 19The application was lodged with the Court on 17 October 2011. The Court stamp shows that copies of the application were to be given to all relevant parties, including the owner and any occupier of the property, by 5.00 pm on 25 November 2011. 20The applicant's affidavit (exhibit 1) at [13] states that he received the application by way of a letter from the applicant's solicitor dated 17 November 2011 and delivered by courier on 29 November. That is four days after the required date. As a result, the applicant claims he had no opportunity to speak with the applicant about the proceedings. 21At the hearing, the applicant's solicitor stated that documents had been served in the appropriate time frame, however there was no evidence on the Court file or with the solicitor on site. Because of the potential of the alleged non-compliance with s 14C to derail the hearing and add to the cost of the matter if it had to be reheard, directions were given for the necessary documents to be filed with the Court and served on the respondent's solicitor. 22The material subsequently filed with the Court (affidavit of Nathan Hanbury Luke - 7 February 2012 filed 10 February 2012) shows that the respondent was personally served with the application at his address in Victoria on 22 November 2011 at 8.20 pm. This information is shown on a tax invoice from the process server dated 23 November 2011 and confirmed in a sworn affidavit from that process server. Another affidavit from an employee of the applicant's solicitor confirms that the application was served on the respondent's mother, an occupier of the respondent's property, on 25 November 2011. 23I am satisfied that s 14C has been complied with and the matter can proceed.

Is there a severe obstruction of a view? (s 14E(2)(a)(ii)) 24As stated above, the views were observed from each of the nominated viewing points. The applicant also relies on the 'Report on Shadow and Loss of View Caused by Planting" prepared by Graeme Barr Architects in August 2011 (the Barr report). This report is included in exhibit A and includes photographs taken from some of the viewing points.

V4 and V5 25Dealing first with the contended obstructions from V4 and V5 - the upper level bedroom and associated living room. From a standing position there is a negligible to minor obstruction of the view of the surf zone and the ocean as a consequence of the Bangalow palms in hedge 2 from V4 - a bedroom. Similarly, from V5, the living area, from both sitting and standing positions, the loss of view from the respondent's trees is negligible. A group of three Norfolk Island Pines planted across the road from the respondent's property punctuates the view. Similarly, there are expansive views from the deck attached to the living room. 26In regards to these viewing positions, the application and the Barr report consider future obstruction and raise concerns that the blockage of the view will worsen as the trees increase in size (depending on their watering and fertilising regime).

Findings V4 and V5 27Section 14E (2)(a)(ii) requires that any of the trees the subject of the application must be severely obstructing the view from an applicant's dwelling at the time of the hearing. The use of the word 'are' in s 14E(2)(a)(ii) has been examined in a number of judgments including Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] with further lengthy discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]. 28The loss of views from V4 and V5, as a consequence of the respondent's trees, is negligible to minor and certainly not severe. Therefore, as s 14E(2)(a)(ii) is not satisfied for these viewing points these elements of the application are dismissed.

V1-V3 29V1 is a covered deck off the dining room and the main living area of the applicant's dwelling. V2 is the dining room and V3 is a bedroom. As stated above, the main views from the deck and relevant windows are to the southwest though to the east of Shelley Beach and the ocean beyond. The views are all across a side boundary. The applicant contends that the trees in Hedges 1 and 2 severely obstruct those views. 30The views from V1 are constrained to the east by the Pandanus on council owned land and to the south/southwest by the roof of the respondent's dwelling and the adjoining dwelling to the southwest of the respondent's property. The main view to the beach is between these constraints. Sitting and standing views would be expected from V1. Of the respondent's trees, the greatest impact on that view is from T6 - a large multi-stemmed Bird of Paradise. There are filtered views through the stems however the broad banana-like leaves and the flower spikes form a relatively dense mass. The tops of the adjoining Golden Cane Palms are thinner and permit views through the fronds. The fronds of the palms are showing signs of salt/ wind damage and as a result are less than luxuriant. 31V2 is the south-east facing window of the dining room. Sitting views vary from where one sits at the dining table. The view corridor is similar to that of V1 but more constrained to the southeast and south by the respondent's dwelling. The trees in Hedge 1 are relevant to V2. There is some obstruction by parts of T6 and the tops of the Golden Cane Palm T7. 32V3 is a bedroom window from which only standing views should be expected. The views from this window are more to the south and southwest and hedge 2 is more relevant. These views are constrained by the dwelling to the southwest of the respondent's property. The tops of the Bangalow Palms obstruct part of the view.

Findings - severity of obstruction from V1-V3 33Both parties' advocates raised the planning principle on view sharing published in Tenacity Consulting v Warringah [2004] NSWLEC 140, a principle not uncommonly referred to in judgments on Part 2A matters. 34In essence, the applicant's solicitor, Mr Luke submits that the views are of water, being more valuable than views of land; the views are principally from standing positions; and the views are principally from living areas rather than bedrooms. He contends that the view loss from the three positions is between 70 and 100% and is thus 'severe'. He contends that without the respondent's trees, the applicant would have an uninterrupted view of about 140 degrees. As a result, he asserts that s 14E(2)(a)(ii) is satisfied for all viewing points. 35Ms Irish for the respondent contends that the views are across side boundaries, which are less likely to be retained; some are sitting views, which are similarly more difficult to maintain; and V3 is from a bedroom and as such is much less valuable. She considers that the view loss is not severe but moderate and as a result, does not satisfy s 14E(2)(a)(ii). 36I do not accept Mr Luke's submissions that the applicant would have otherwise uninterrupted views of the beach and the ocean beyond. The views are constrained by other vegetation and structures beyond the parties' properties. 37In a number of cases including Ball v Bahramali & Anor [2010] NSWLEC 1334 and Haindl v Daisch [2011] NSWLEC 1145, the Court has considered the word 'severe' and the high bar it sets. Relevant definitions from the Macquarie Dictionary and the Oxford Dictionary include: harsh, harshly extreme, grievous, extreme, hard to endure, causing great discomfort or distress. In Haindl at [64] Moore SC and Hewett AC said the following: 64 It 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 qualitative and quantitative 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 of that view. 38Tenacity uses the categories of 'negligible, minor, moderate, severe or devastating' to qualitatively describe the view loss. Based on what I was able to see at the hearing from V2 and V3, I am not satisfied that the loss of view is any more than moderate from V2 and minor to moderate from V3; that is, the loss of views as a consequence of the respondents' trees is not severe. Therefore I find that s 14E(2)(a)(ii) is not satisfied for these two viewing points and those elements of the application are dismissed. 39In regards to V1, I am satisfied that whilst some filtered view of the beach and ocean is available through the trunks of T6, overall it creates a severe obstruction of the most desirable view from a part of the applicant's dwelling that could be reasonably expected to be frequently used. In this regard, I consider s 14E(2)(a)(ii) to be met for V1 and therefore I must consider s 14E(2)(b) and s 14F in order to determine what if any orders should be made. 40Section 14E(2)(b) effectively requires a balancing of the applicant's desires with the needs of the respondent. The following clauses of s 14F are relevant to the findings for V1. (a) The trees in Hedge 1 are planted close to the dividing fence; and in relatively close proximity to the applicant's dwelling. (b) The trees were planted after the construction of the applicant's dwelling and V1. (c) The trees have grown to their current height of in excess of 2.5m in that time. (d) In material submitted by Ballina Council, council permission would not be required for the pruning or removal of either Golden Cane Palms or Bird of Paradise plants. (g) Despite being an exotic species, flowers of the Bird of Paradise plants would provide food for a range of species of fauna and would thus contribute to the local ecosystem and to biodiversity; I observed native minor birds feeding on them during the hearing. (h) The trees contribute to the natural landscape and scenic value of the respondent's land. (k) The removal of selective stems of both Golden Cane Palms and Birds of Paradise plants will usually not adversely affect the plants, however, the reduction in height of the stems to a prescribed level may kill the individual stem. (l) The trees are valued by the respondent and his parents (who reside in the dwelling) for the privacy they provide from the applicant's property; in particular, privacy to the pool and its surrounds. The respondent has horticultural expertise and the plants were selected and planted by him for their particular foliage characteristics and screening potential. Thus they are important elements in the overall design of the garden. (m) As discussed elsewhere in this judgment, there are trees and structures other than the respondent's trees that contribute to the obstruction of views from V1. These include the Pandanus on the council nature strip, Norfolk Island Pines in the middle distance, and roofs of nearby dwellings. The applicant's dwelling is approximately 250m upslope from the beach and separated from it by three rows of dwellings, two streets, and a council reserve along the beach front. (n) The respondent appears to have carried out some pruning of the trees in hedge 1; they appeared less dense at the hearing than they appear in the photographs in the Barr report. (p) The trees are evergreen species. (q) The nature of the view affected and the remaining view has been discussed elsewhere in the judgment. (r) The parts of the dwelling from which the views are obstructed has also been discussed elsewhere. 41In summary, the respondent's main concern is that the trees provide screening and privacy, particularly for the pool and its surrounds. It was very obvious at the hearing that the pool is clearly visible from V1 and V2 in particular. Being clumping species with terminal foliage, the palms and the Bird of Paradise plants have generally grown to the point where they are not especially effective at screening the pool, even though they do screen other parts of the respondent's property. There is a gap between the top of the dividing fence and the bottom of most of the foliage that enables quite clear views of the pool. 42In weighing up the competing needs of the parties, I find that T6 does severely obstruct the views of the beach and the ocean from V1 and that it no longer forms an effective privacy screen between the respondent's pool and the applicant's property. It is of a species that can be selectively thinned and reduced, however, given its location, form, potential size and few small/ low shoots, I consider the best option to be its removal and replacement with a Golden Cane Palm or similar clumping palm. [At the hearing, the respondent was invited to consider what if any replacement species might be ordered if the Court was so minded; his response was that the Court should determine that issue if it arose.] The stems of any replacement palm that grow above 5 m should be removed annually. This would allow views from the applicant's deck but maintain the plant in such a way as to encourage new shoots to maintain the screening value. The shoots up to 5 m will provide some screening to other parts of the respondent's dwelling. I am not satisfied that any of the adjoining palms are causing a severe obstruction of the view and no orders will be made for any intervention with any other tree. 43As with the vast majority of orders for any intervention with a tree the subject of an application under the Trees Act, the orders are made against the owner of the tree/s. As all of the judgments made under the Trees Act since its effective commencement in early 2007 are published on the Court's website, this should not come as a surprise to the parties' legal representatives. I consider the cost of the removal and the replacement of T6 should be at the respondent's expense. 44Therefore, on the basis of the forgoing, the Orders of the Court are: (1)The application is upheld in part. (2)Within 90 days of the date of these orders, the respondent is to remove T6, a large Bird of Paradise (Strelitzia nicolai) to 200 mm below ground level and replace it with a Golden Cane Palm (Dypsis lutescens) or similar clumping palm. (3)Any individual stem of the replacement palm that is taller than 5m is to be removed on an annual basis in the month of October each year. (4)The cost of the removal and replacement is to be borne by the respondent. (5)No orders under s 14D of the Trees (Disputes Between Neighbours) Act 2006 are made for any pruning or removal of any other tree the subject of this application. 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: 10 May 2012