NSWLEC 1322
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited: AS4373:2007 Pruning of amenity trees
Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013
Lane Cove Development Control Plan 2009
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016
Category: Principal judgment
Parties: Claire Kennard (Applicant)
David Matthew Fite (First Respondent)
Danita Rae Lowes (Second Respondent)
Representation: Counsel:
M Seymour (Respondents)
[2]
Solicitors:
A Gadiel, Mills Oakley (Applicant)
HWL Ebsworth (Respondents)
File Number(s): 2019/17206
Publication restriction: No
[3]
Judgment
COMMISSIONER: The applicant and the respondents enjoy waterfront access, and views of the Lane Cove River, Woolwich, and Sydney's CBD in the distance, from their properties in Longueville. When the applicant, Mrs Kennard, occupied her property in 2013, she had relatively open water views from elevated living areas, down and over her yard to the south-southeast, and over a segment of the respondents' rear yard.
The common property boundary slopes down from the north-west to the waterfront at the south-east. The applicant's land is a 'battle axe' block with the handle containing the side yard at issue. It is consistently about six metres wide between the rear balcony of the house, and the waterfront. Mrs Kennard's residence is set back about 40 metres from the water, and is positioned parallel to, and about a metre from, the common boundary.
The respondents, Mr Fite and Ms Lowes, access their property from an adjacent street. It is a double block, on which the original dwelling is an historic house, which is listed by Lane Cove Council (Council) as an item of local heritage. Copies of correspondence with Council note that the garden and curtilage are not similarly heritage listed.
Growing close to, and parallel to, the common side boundary on the respondents' property, is a row of at least 16 XCupressocyparis leylandii (Leyland Cypress) (the trees), which extend from near the rear of the applicant's residence down towards the waterfront. Since 2013, these trees have grown many metres in height, such that they currently block visual access from the applicant's living areas to extensive water views beyond.
In an attempt to regain these views, Mrs Kennard 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 with an inspection of Mrs Kennard's property, the trees and the viewing spots V1 - V2, which are gained from the ground floor level living room and the adjacent ground floor level balcony, and V3, from the lower ground floor billiard/living room below. In his arborist report for the respondents (Exhibit 2), Mr Paroissien noted that eight of the trees had been lopped in the past to a height of approximately four metres above ground level, from which they responded with dense, though relatively poorly attached, regrowth. Signs of this lopping and regrowth were clearly evident on some of the trees easily accessed close to the applicant's ground floor level balcony.
An inspection of Mr Fite and Ms Lowes' property followed. When viewed from the respondents' rear yard, the trees may be divided into two groups based on their management. Trees 10 - 16, closest to the waterfront, are growing in fairly level soil beneath a timber deck which surrounds a boat house and nearby swimming pool, with the decking cut sufficiently clear of the trunks to provide room for growth in girth in the medium term. Significantly, these trees have all been pruned of their lower foliage to about three metres above deck level, and foliage is unlikely to re-establish on the lower trunks.
Trees 1 - 9 are growing in a garden bed which ascends quite steeply towards the north-west. At the lower end of this slope, some of these trees exhibited dieback of foliage on their south-western side, which Mr Paroissien attributed to either excessive pruning and or symptoms of Cypress canker, the presence of which he had noted in his report (Exhibit 2).
Representations were made by the respondents' Counsel, Mr Seymour, as to the important privacy role the trees provide for the respondents' swimming pool usage. The applicant's Solicitor, Mr Gadiel, questioned the significance of this privacy claim, given that the swimming pool is located close to the waterfront, with almost no restriction to visual access from that vantage. The Court inspected the outlook from Mr Fite's and Ms Lowes' bedroom, to consider the potential exposure of windows and subsequent loss of privacy from a dwelling beyond the applicant's to the north-east, should the hedge be removed or pruned.
The Court next assembled on the applicant's balcony for submissions. Mrs Kennard was accompanied by her husband, and her team comprised Mr Gadiel, Ms Howden, Arborist, Mr Mead, Town Planner, and Ms Walter, Surveyor. Ms Lowes was in attendance, represented by Mr Seymour, who was supported by Ms Epstein, Solicitor, Mr Paroissien, Arborist, Mr Vescio, Town Planner, and Mr England, Surveyor/Engineer. All five Expert Witnesses, who provided reports and were present at the hearing, 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 such undertaking was apparent from Ms Walter, of Mepstead & Associates but her 'Mepstead survey' of 23 April 2019, was used in the assessments of both Ms Howden and Mr Paroissien, it noted her registration under the Surveying and Spatial Information Act 2002, and was accepted by the Court.
[5]
Applicant's proposed orders
The Applicant's proposed orders are as follows:
"(1) Within 60 days of these orders, the First Respondent and the Second Respondent must:
(a) Remove trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16 as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge ... prepared by Melanie Howden and dated 6 December 2018 (the Howden Report)
(b) Plant - in the present location of trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9 - smaller native species comprising one or more of the following species: Syzygium luehmannii 'Lulu', Syzygium austral 'Aussie Southern', or varieties of Weeping Bottlebrush (Callistemon viminalis).
In the alternative:
(1) Within 60 days of these orders, the First Respondent and the Second Respondent must:
(a) prune trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16 as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge … prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line; and
(b) at all times maintain those trees so that they do not exceed the height line.
The 'height line' means a line drawn from the location of tree 11 through to the location of tree 1 through the following points:
• RL6.9 at the location of tree 11 on the survey, and
• 12.75 at the location of tree 2 on the survey,
The 'survey' means the 'Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates.
(2) The work required under order 1 must be carried out:
(a) at the expense of the First Respondent and the Second Respondent;
(b) using the services of a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances; and
(c) in accordance with AS4373:2007 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(3) The First Respondent and the Second Respondent are directed, not later than 48 hours prior to any work being undertaken under order 2, to serve, by pre-paid post, on the Applicant notice of such work and notice of the time when the work is proposed to be undertaken."
Mr Seymour was granted leave for the Respondents to provide proposed Final Orders to the Court by close of business on 14 June 2019, and the Applicant was granted a right of response by close of business on 18 June 2019. Both parties adhered to this timetable.
The respondents' proposed orders are as follows:
"(1) The application is upheld in part.
(2) Within 60 days of the date of these orders the respondents are to engage a minimum AQF Level 4 arborist, with appropriate insurance, to prune the hedge comprising the sixteen Leyland Cypress trees identified as Trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, and 16 within the drawing annexed and marked "A" (Hedge) in accordance with the Maintenance Regime in Schedule 1 subject to the Booking and Payment Regime in Schedule 2.
(3) Before the expiry of 18 months from the date of these orders, or from the date of last compliance with these orders, the respondents are to engage a similarly qualified arborist, with appropriate insurance, to prune the Hedge in accordance with the Maintenance in Schedule 1 subject to the Booking and Payment Regime in Schedule 2.
(4) If at any time the Applicant fails to comply with [6] of the Booking and Payment Regime in Schedule 2, by failing to reimburse the Respondents within 40 days of receipt of the tax invoice, these orders will lapse.
Schedule 1: Maintenance Regime
The Hedge is to be pruned to achieve as best as can be done:
Tree Number Desired finished height from ground (ground level is defined as the higher of the existing soil level or the surface of the timber waterfront deck)
The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and in accordance with the general and selective removal provisions of AS 4373: 2007 Pruning of Amenity Trees. The Applicant is to provide access to their property to facility these works.
Schedule 2: Booking and Payment Regime
(1) The respondents are to provide the Applicant at least three quotes at least 28 days before the dates required for works to be undertaken under orders 2 and 3.
(2) The Applicant is to select one of the quotes from those provided.
(3) The Respondents are to commission the Applicant's selection of arborist and provide the Applicant with 2 [days'] notice of the commencement of works.
(4) If, in respect of any future works under Schedule 1, the Respondents commission the same arborist as previously selected by the Applicant, then paragraphs [1]-[2] do not apply.
(5) The Respondents are to provide the Applicant a copy of the tax invoice of the arborist within three days of it being provided to them. If the Respondents fail to provide the tax invoice within 28 days of receipt of it, paragraph [6] does not apply.
(6) Within 21 days of the receipt of a tax invoice the Applicant is to reimburse the Respondents the full amount of the tax invoice."
[7]
Jurisdictional requirements - Part 2A
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].
[8]
Do the trees form a hedge?
The first test is s 14A(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).
This row, comprising sixteen trees, and initially planted about twenty years ago, now reaches about nine metres in height, 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.
Notwithstanding that Mr Seymour, early in proceedings, conceded that the respondents were not questioning the extent of view loss, and considered it to be severe, this concurrence with the applicant's position is not, of itself, sufficient to invoke the jurisdiction, and the degree of obstruction must be assessed as severe to satisfy s 14E(2)(a)(ii).
In considering the severity 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. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
In applying the Tenacity principles to this hedge, the obstructed views contain a broad sweep of the Lane Cove River, and the interfaces between the river and the Woolwich peninsula on the far side, and the river and the accessible foreshore. The current and potential view angles to the river are superimposed onto the Mepstead Survey at Figure 1 and aerial photographs (photos) at Figures 2 - 3 of Mr Mead's report (Exhibit E). At paragraph (para) 3.18, Mr Mead notes that the available viewing angle from the ground floor living room exterior door was 83 degrees in 2013, when the hedge was low enough to not obstruct the view, and that the view has been progressively reduced to the current viewing angle of 20 degrees. This additional 63 degree arc around from the common side boundary is thus gained entirely across the respondents' property, and would likely be from either a sitting or standing position on the balcony, but more likely a standing position further within the nominated living room. It must be noted from the second step of Tenacity, that "the expectation to retain side views and sitting views is often unrealistic."
Considering the third step of Tenacity, the primary nominated viewing points are from the ground floor living area, and the adjacent balcony (V1 and V2). From the lower level living area (V3), it is an unrealistic expectation to gain markedly improved views, due to both its position, and its relatively lower significance as a living room. Even if the hedge was absent, existing vegetation on Mrs Kennard's property restricts views from this room. Conversely, first floor bedrooms may currently provide water views over the hedge, but using the guidance of Tenacity, I concur with Mr Mead at para 3.15 of Exhibit E, that "emphasis should be placed on the living spaces versus the bedroom."
Though the respondents submitted that a poolside living area on the dwellings north-western side was, in fact, the applicant's main living area, the applicant's dwelling appears to have been designed to capitalise on water views, and therefore V1 and V2 satisfy this third Tenacity step.
The extent of the impact for the whole of the property is significant and an excerpt from para 3.19 of Mr Mead's report well describes the situation. Mrs Kennard's property:
"retains a corridor view to the Sydney CBD, a narrow portion of the Lane Cove River and opposite foreshore however the overall viewing angle is drastically reduced by the hedge and the quality of view is severely compromised by the visual enclosure of the area forward of the 'foreshore setback line' (under LDCP 2009). The breadth of the hedge which overhangs the common boundary further elevates this impact of visual enclosure. The severe reduction in viewing angle erodes the overall quality of view to the opposite foreshore of Woolwich and the character of the waterway view. The context of the visual relationship between (the applicant's property) and the waterway is severely and adversely affected by the hedge."
Though Mr Mead's submission is persuasive, because the Court sets a high bar when considering the word 'severe', and as the coveted views are gained entirely across the common side boundary and a wide expanse of the respondents' yard, I seek additional guidance from Holland v Bell [2017] NSWLEC 1322 at [12]-[13], where, in a similar situation, Acting Commissioner Galwey refers to the Interpretation Act 1987:
"[12] The Interpretation Act 1987 permits me to refer to relevant material to assist in interpreting the Trees Act. Here I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review') for assistance with interpreting "severely obstructing a view" (s 14E(2)(a)(ii)).
[13] On page 39 the Review describes the Trees Act's scope (with my emphasis):
The Court would only have the power to hear matters regarding:
• hedges which are both high, and similar to a wall in their visual effect.
• hedges which affect people's homes (rather than their gardens or other structures on their property).
• cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if 'enjoyment of property has been severely affected by a neighbour's trees blocking out sunlight' or 'enjoyment of property has been severely affected by a neighbour's trees blocking out a view'.
• cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase.
• hedges which are directly next door (not one or two properties over)."
These 16 Leyland Cypress trees, which are directly next door, create a tall dense screen, similar to a wall in its effect. It severely affects views from Mrs Kennard's dwelling and severely affects enjoyment of their property. The views now obstructed were available to Mrs Kennard, at the time she purchased the property.
I am therefore satisfied that the hedge 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 it extends close to the applicant's dwelling.
(b) The trees were planted about 20 years ago, which, based on house plans provided by the applicant, appears to around the time that their house was constructed.
(c) The trees have grown to their current heights since the applicant's occupation of the property in 2013, when, based on photos, they appear to be about four or five metres tall.
(d) Ms Howden, notes at para 22 of her report (Exhibit D), that "pruning of the hedge does not appear to require a Heritage Impact Assessment under the Lane Cove LEP 2009", though a general condition of D341/08, notes that the trees are protected by Council's Tree Management controls under its Development Control Plan.
(e) Acknowledging that only the first three Tenacity principles directly apply to the analysis of hedges under Part 2A of the Act, the applicant submitted the significance of alleged development non-compliance under this provision, which addresses "any other relevant development consent requirements or conditions relating to the applicant's land on which the trees are situated." Mr Mead, at para 3.24 of his report, claims that "the hedge exists in breach of D341/08 (as modified)", he provides detailed substantiation of this claim at paras 3.25-3.32, and at para 3.33 notes that the hedge exists 'within the area forward of the foreshore setback line', as set by Part 5.1.3 of Lane Cove Development Control Plan 2009 (LDCP). He adds at para 3.34, in relation to DCP Part 5.1.4 which prohibits dwellings forward of the foreshore setback line, that the existing hedge is equivalent to a 2-3 storey building height, yet lines the boundary without setback, and thus breaches the spirit in terms of 'reasonableness' if not the letter of the LDCP 2009.
In support of this position, at para 3.35, Mr Mead opines that "Parts 5.1.3 and 5.1.4 should be read in conjunction with Part B.4 - View Sharing of LDCP 2009", the preface of which notes that:
"the sharing of all views is part of the character of the Lane Cove area and should be maintained where possible subject to how the view is obtained and whether maintenance of such a view creates an unreasonable impost on adjoining land owners."
To highlight the gravity of this issue, Mr Gadiel noted the importance that the Court assigns to compliance with planning controls, and this tenet is addressed by Senior Commissioner Roseth, where at [67] of Tenacity in relation to the fourth step, he notes that:
"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."
The respondents accepted that "there is a standard condition (No 1) applying to consent D341/08", as noted at para 4.4 of Mr Vescio's report (Exhibit 1), though I am not convinced that their position extended to a concession "by the Respondents' counsel (at the hearing) that the orders sought by the applicant are consistent with the development consent", as noted in para 22 in "Applicant's Submission in Response to Respondents' Proposed Orders" (Exhibit J).
[9]
Conclusions
I am not persuaded that the alleged historical development non-compliance, the subject of differing interpretations by the parties, should dictate the removal of the hedge, when there are many other important discretionary considerations that favour its retention. The hedge shall therefore be retained.
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 landscape amenity, particularly in relation to views from the adjacent river. This will result in little loss of amenity for the respondents and significant benefit for the applicant.
Though it is accepted that these trees are tolerant of heavy pruning, the cumulative impact of this repeated foliage removal will result in tree stress in the medium and long term, likely manifesting as reduced resistance to organisms such as Cypress canker. In this respect, an ongoing watering program, responsive to rainfall variability, and implemented by a qualified, experienced gardener, will be beneficial to tree health, and enhance vigour and longevity.
Pruning specifications for trees 1 - 9 will closely approximate the applicant's proposed orders, and, on average, render the trees slightly taller than proposed by the respondents. This requires pruning of these trees no lower than 4.5 metres above ground level, to ensure that only the regrowth is cut, on trees that were previously pruned to a height of about four metres, rather than the main trunk being re-cut.
Reflecting the concern of both Ms Howden, in her report, and Mr Paroissien, on site, along with my own expertise, the pruning specifications for trees 10 - 16 will take into consideration the absence of foliage on the lower trunks, by setting 5.5 metres above deck level as the lowest height to which these trees can be pruned, and 6 metres above deck level as their maximum allowable height. These trees are relatively easily accessed for maintenance.
As submitted by Mr Gadiel, the default position in Part 2A matters under the Act, when orders are made for intervention by the respondents on their 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 Fite and Ms Lowes had for many years resisted pruning the hedge, were aware that the applicant's view obstruction was significant, and had ample opportunity to reduce the severity, prior to the onsite hearing. In these circumstances, I can find no reason why the cost of the required hedge maintenance should not fall on the respondents.
[10]
Orders
As a consequence of the foregoing, the orders of the Court are:
1. The application is granted.
2. Within 60 days of these orders, the First Respondent and the Second Respondent must:
1. prune trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the 'height line' means a line drawn from the location of tree 6 through to the location of tree 2 through the following points:
1. RL10.32 at the location of tree 6 on the survey, and
2. RL12.75 at the location of tree 2 on the survey.
1. The 'survey' means the 'Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates, and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level.
2. At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, be pruned to a height lower than 4.5 metres above ground level.
1. Within 60 days of these orders, the First Respondent and the Second Respondent must:
1. Prune trees 10, 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees.
1. The work required under Orders 2 and 3 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 (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and 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, 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 Leyland Cypress hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at a height no higher than that specified in Orders 2 and 3.
[11]
Amendments
24 July 2019 - Pursuant to UCPR r 36.16(3B), by the Court's own motion, amend orders of 12 July 2019 as follows:
[12]
(1) Insert the following phrase "and subsequently maintain these trees at all times below the height line," after the word "height line" in Order (2)(a);
[13]
(2) Substitute the phrase "Orders 1 and 2" in Order (4) with "Orders 2 and 3".
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: 24 July 2019
In particular, the removal of the hedge, which the applicant claims is required for compliance with the conditions of the development, is strongly resisted by the respondents. Mr Vescio at para 4.4 of Exhibit 1, suggests there is "some ambiguity as to what was proposed for replacement planting and which part of the hedging was "proposed" to be removed", he opines that "this was voluntary works not mandated by Council and nor (sic) fundamental to the granting of consent" and that "[t]here was no condition reinforcing or requiring any specific performance of this landscaping along the side boundary." At para 4.5, Mr Vescio also refers to a letter from Ms Jane Irwin, Landscape Architect, submitted with the respondents' modified development application (though not included with his report), that noted "the removal of the conifers was only contemplated as they were considered at the time to be in poor condition and unlikely to survive the building process for boat shed." It appears that their condition has improved since this time.
Notwithstanding this alleged planning non-compliance, the respondents received a post development Occupation Certificate many years ago, and the applicant noted having no intention of pursuing the matters for enforcement. Significantly, perusal of the Landscape plans leads me to accept Mr Vescio's assertion that the drawings and notations in the hedge area are, at least somewhat, ambiguous. Therefore, I do not accept that this issue should be assigned greater significance than other relevant considerations.
(f) The hedge has insignificant historical, cultural, social or scientific value. In the absence of a heritage listing of the garden, Mr Vescio at para 4.7 of Exhibit 1, applies the principles in Article 8 of the Burra Charter to the item, which "require the retention of an appropriate setting" and notes that "changes which would adversely affect the item's setting or relationships are not appropriate." He applies these principles in this context to justify the retention of the hedge, but given the extreme alteration to the historic house's curtilage as a result of the respondents' large development, the heritage item's association with the setting has already been markedly changed and diluted.
(g) The hedge is likely to make a minor to moderate contribution to biodiversity; in particular the trees may provide habitat for fauna.
(h, i) The trees make a minor contribution to the natural landscape, but are important in terms of scenic value of the land on which they are situated or the locality concerned, and also to public amenity, when viewed from the river. I accept Mr Vescio's comment at para 4.8 of Exhibit 1:
"existing mature trees which are visually prominent features of the riverscape should be retained as they provide attractive backdrops to waterways as well as 'green separation' between neighbouring properties and soften the impact of the built form from the waterway."
(j) The trees would make a positive contribution to soil stability, particularly trees 1-7, and 9, the roots of which would likely reduce soil erosion caused by water flowing down the relatively steep slope.
(k) Healthy "Leyland Cypress trees are considered to be robust species and are capable of withstanding severe pruning without having a significant impact on the health and condition of the trees" and this is noted by Ms Howden at para 47 of Exhibits D, with concurrence by Mr Paroissien at the top of page 16 of Exhibit 2.
Mr Gadiel analyses aspects of both arborist reports (Exhibits D and 2) in Exhibit J. At para 24, he contends that "Ms Howden gave evidence on site that she was satisfied that the pruning of the trees proposed by the Applicant was consistent with maintaining the health of those trees" and at para 26 concludes that "On Mr Paroissien's evidence greater pruning of these trees is possible without affecting tree health", than that proposed by the respondents.
Mr Gadiel appears to infer that pruning, regardless of the extent, may be completed without negative consequences, and was consistent with maintaining tree health. With the arboricultural expertise that I bring to the Court, I note that this is manifestly untrue, in that foliage removal necessarily reduces optimal tree health and function, and other comments by both arborists attests to this. Ms Howden, at para 26 of Exhibit D, notes that "pruning and maintenance of the hedgerow at a variable height similar to the height of the adjacent vegetation" (on Mrs Kennard's land), "will not have a significant impact on the trees, with the exception of the trees at the southern end of the hedgerow adjacent the boatshed. The lower branches of the trees adjacent the boatshed are currently pruned to provide access and depending upon the amount of height reduction proposed, these trees may or may not survive."
Seven trees from the 16 that comprise the hedge exhibit this canopy raising, and Mr Paroissien also emphasised the vulnerability of these trees in response to proposed heavy pruning during the site inspection. Though Mr Paroissien notes general agreement with Ms Howden's position, at para 6.5 of his Conclusion in Exhibit 1, he discusses the impact and extent of negative impacts, such as entry of fungal decay into pruned branch stubs, as "subject to the extent of such pruning." Overall, the acknowledgement by both arborists that these trees may withstand severe pruning without a significant impact on the health and condition, is not equivalent to Mr Gadiel's broader interpretation that tree health will not be negatively impacted by severe pruning.
However, should there be no pruning intervention with the trees, further growth towards their potential height of about 15 to 25 metres would likely result in additional conflicts with neighbours over view loss, along with major overshadowing of the respondents' garden and probably also the pool.
(l) Being higher up the hill, and located on the house's middle level, the applicants' veranda and rear living area overlooks the respondent's rear yard, and the hedge contributes significantly to providing privacy for the respondents. It also adds to garden design and contributes to the amenity value of the garden.
With respect to privacy in the pool area, the respondents submitted that there is a marked difference between being potentially viewed from the inconspicuous, elevated vantage points on the applicant's property, relative to people on boats beyond the waterfront, who would generally be at or below pool level, and whom they could clearly observe as they approach. Ms Lowes noted that the river was generally not heavily used. Mr Gadiel strongly disputed the importance of privacy in this area, given the pool's waterfront location, but I concur with the respondents' position.
I do not, however, accept that privacy for the respondents in their bedroom, with respect to an upper level window of a dwelling beyond the applicant's property to the north-east, should be considered important, because the respondents' bedroom is located close to the south-western boundary of their vast block, and is thus more than 50 metres from the nominated window.
(m) Though there are other trees in Mr Fite and Ms Lowes' rear yard, which would also restrict the applicants' view, only one tree, a mature Cedrus sp (Cedar) is central to the applicant's desired outlook. This tree appears to be in a state of decline, based on a comparison of photos from 2013 relative to its observed current condition. This Genus, and particularly mature specimens, do not normally tolerate root damage and or major changes around the root zone, which may well have occurred as a consequence of refurbishment of the waterfront pool, and associated landscaping. I would thus anticipate further canopy thinning and branch dieback on this tree, and with it, a progressive reduction in its capacity to compromise the potential view from either property. Other trees noted by Mr Paroissien, as conflicting with the applicant's potential view, are sufficiently clear of the main outlook to frame rather than obstruct the view, and thus will not be subject to specific analysis.
(n) Based on correspondence provided to the Court, and a timeline included in the applicant's written submission, it is clear that Mrs and Mr Kennard have made various approaches to Mr Fite and Ms Lowes, requesting pruning of the hedge.
Though the respondents received a report from their Town Planner, Mr Vescio (Exhibit 1), which concluded that the obstruction of the applicant's view by hedge was severe, they chose to proceed to hearing, rather than take genuine measures to reduce the obstruction. At the onsite hearing, the respondents submitted that the obstruction of views was currently severe, and therefore, perversely, relinquished control and management of their hedge to the Court.
(p) The trees are evergreen.
(q, r) The obstructed view is from a living room and adjacent balcony (V1 and V2), and the view is significantly restricted by the hedge. The remaining view is tunnel like, with a narrow viewing angle of about 20 degrees, and is compromised further by the width of the hedge which protrudes into the applicant's property.
(s) Should the hedge be removed and replaced, there would be a considerable period before a viable replacement hedge, in terms of privacy, could be established. This period was noted as three to five years by Ms Howden, and five to seven years or more by Mr Paroissien. Taking five years as a realistic mid-point between these two estimated ranges, with which I concur, this is an unreasonably long period for the respondents to be deprived of privacy, which can otherwise be provided by the current hedge, even after modification through pruning.
Further, based on supplied correspondence since 2013 between the Kennards and Mr Fite and Ms Lowes, I can find consistent reference to hedge pruning, but no request or mention of removal.