Lau v Miller; Karib v Miller; Eriksson v Miller

Land and Environment Court (NSW)|2013-10-24

RESPONDENT Damian Ward [solicitor] Mills Oakley Lawyers File Number(s): 20619 of 2013 20620 of 2013 20621 of 2013

Background 1This tree dispute involves three applications from three separate applicants. The applicants' properties are in a row, fronting a residential street in Castlecrag. The three applicants (from south to north) are Mr Eriksson, Mr Lau and Mr Karib. They all have concerns about sunlight to, and views from, their properties being obstructed, or becoming obstructed, by trees on an adjoining property. 2Mr Miller owns the property to the west of the three applicants. His dwelling occupies the western part of his property; a tennis court takes up much of the eastern part. The land rises to the east. Between the tennis court and the eastern boundary, in a narrow raised garden bed, is a row of thirteen palm trees interplanted with twelve Lilly Pillies. 3Mr Lau acted as agent for the other two applicants at the hearing.

Onsite hearing 7The onsite hearing began at the Karib property, proceeding to the Lau property, then the Eriksson property and finally to the Miller property. At each of the applicants' properties Mr Lau described the view loss. Mr Eriksson was not available and we were unable to gain access to the upper level viewpoints where he claims a view obstruction, so Mr Lau relied here on a photograph taken from the upper level balcony. He says this photo was taken two days earlier.

Karib property 8We were taken to two viewpoints from which views are said to be obstructed: the lounge room (V1) and the dining room (V2). Mr Karib claims views from the lounge room of the "Castlecrag valley" and St Leonards are obstructed by five palm trees: T1, T2, T4, T5 & T6. I observed that only small parts of the view were possibly obstructed, and that other trees and a dwelling would appear to obstruct the same parts of the view were the palms not there. Mr Karib claims that, from the dining room, views of the valley, St Leonards and Northbridge are obstructed by five palm trees: T5 - T9. I observed that, while palm fronds obscure parts of the view, the crowns of the palms do not form a solid screen and much of the view can be seen between the palms as well as between fronds of each palm.

Lau property 9At the Lau property, Mr Lau explained that he does not claim a loss of view from the downstairs part of the dwelling. Upstairs he took us to the master bedroom (V1) and the second bedroom (V2). From the master bedroom he says that trees T9 -T12 obstruct views of the Castlecrag valley, Artarmon and St Leonards. The respondent pointed out from this viewpoint that the scope of the view is large, that most of the view is presently visible and that palms on other properties obstruct parts of the view. The respondent also pointed out that, from this viewpoint, the applicant can see the respondent's pool and dwelling. 10From the second bedroom Mr Lau says that views of the Castlecrag valley are obstructed by the palm trees. The respondent pointed out that the large gum tree in the applicant's back garden is closer to this viewpoint and obstructs more of the view than the palms do.

Eriksson property 11Mr Eriksson was not present at the hearing and we were not provided with access to the upper level of the dwelling, from where he says views are obstructed. Instead, we stood on the lower level balcony beneath the two viewpoints and Mr Lau showed a photo taken from the upper level balcony. From both the master bedroom (V1) and the second bedroom (V2) Mr Eriksson says the palms T9 - T12 obstruct views of the valley and of Chatswood. The respondent pointed out that the photo showed that there is currently no obstruction of the broad vista.

Miller property 12At the Miller property, the respondent pointed out that windows of Mr Lau's dwelling could be seen, so privacy was a concern. It was also noted that, even if one or two of the interplanted Lilly Pillies were less than 2.5 metres in height, most were above 2.5 metres.

Applicants' submissions regarding view obstruction 13All three applications claim an obstruction of view caused by the palms. During the onsite hearing, Mr Lau stated the numbers of the palms that they say obstruct views, and also stated that some of the Lilly Pillies obstruct views from the Karib and Lau properties. However, Mr Lau also made it clear that the three applicants' concerns relate primarily to the potential for views to be obstructed in future. Mr Lau pointed to more mature and larger palms on other properties, and submits that when the respondent's palms reach that size they will then severely obstruct the applicants' views. Mr Lau concedes that there is not a severe obstruction of views at present. He submits that potential for obstruction caused by the Lilly Pillies can be controlled by pruning, whereas palms can't be pruned so their potential for future obstruction cannot be controlled. 14The applicants also submit that the palms cause nuisance by overhanging their properties, and that fallen fronds may cause injury as they are thorny. They say that roots from the palms may cause damage or block a sewer pipe. 15The applicants submit that they have attempted to resolve these issues with the respondent but have been unsuccessful.

Respondent's submissions 16Mr Miller submits that he planted the palms for privacy, to prevent overlooking, especially from the Lau and Eriksson properties. He says there was previously bamboo on his property along this boundary. When the applicants complained about the bamboo he removed it and replaced it with the palms and Lilly Pillies. He says the current planting was designed to maintain privacy, while removing some of the negative aspects of the bamboo planting, such as its potential to spread. 17Mr Miller submits that there is no obstruction of views from the Eriksson property; that the only obstruction of views from the Karib property is of the respondent's dwelling; and that Mr Lau's own tree causes more obstruction to Mr Lau than any of his palms. He submits that if the Court is to find there is an obstruction, that it is not severe; and that even if it were severe, when the matters at s 14F are considered there is nothing about the applicants' wishes that would outweigh the respondent's reasons for not interfering with the trees.

Jurisdictional tests 18I am satisfied that the applicants have made reasonable effort to reach agreement with the respondent. I am also satisfied that the palms and Lilly Pillies were planted at the one time, in a straight line and at regular spacing, with the aim of providing screening, and therefore were planted so as to form a hedge. I am satisfied that most of the plants are more than 2.5 metres tall and, therefore, the Court can make orders for the entire hedge, as found in Wisdom v Payn [2011] NSWLEC 1012 at (66). The jurisdictional tests at s 14A(1)(a) and (b) and 14E(1)(a) are therefore satisfied.

View obstruction not severe 19According to s 14E(2)(a)(ii), the Court must not make an order under Part 2A of the Act unless it is satisfied that the trees concerned are severely obstructing a view from the applicant's dwelling. 20I accept the respondent's observations that the scope of each view is large, that the palms presently obstruct very little of the views, and that other trees including palms on other properties and, in Mr Lau's case, the gum tree in the applicant's own garden, contribute more than the respondent's palms to any existing obstruction of views. 21Some fronds of the respondent's palms may obstruct small parts of views from the applicants' dwellings. However, I noted that the vast majority of views from each dwelling is still available, and as Moore SC and Hewett AC found in Haindl v Daisch [2011] NSWLEC 1145, the totality of the views must be considered. I do not find that there is a severe obstruction of views here and I note that Mr Lau, during his submissions, conceded the same. 22The applicants' concerns regarding future obstruction of views does not give the Court jurisdiction to make orders. As Fakes C discussed at (14) in Tooth v McCombie [2011] NSWLEC 1004 the obstruction must exist at the time of the hearing. 23As a result, the application must be dismissed. If in future the applicants find that a severe obstruction occurs, that would be a change in circumstances and the applicants would be able to make a new application to the Court, as described in Hinde v Anderson & anor [2009] NSWLEC 1148.

Other issues 24Other issues raised by the applicants, such as risk of damage or injury, would require an application under Part 2 of the Act. The Court has no jurisdiction under Part 2A to make orders regarding these matters.

Orders 25As a result of the above, the orders of the Court are: (1) The application is dismissed.

D Galwey Acting 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: 11 November 2013

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