Luschwitz v Waterhouse & anor

Land and Environment Court (NSW)|2017-07-26

Background

Ms Luschwitz ('the applicant') has lived at her Elizabeth Bay property since 2002. When she moved into her apartment, she enjoyed views across the water eastward to Darling Point; especially, she says, night-time views with the rising moon. In 2011 her neighbours planted a row of cypress trees ('the hedge') along the boundary. For a period, there was an agreement for pruning the hedge, so as to maintain her views, but the hedge now grows above the adjacent garage wall and obscures part of her view. She has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the hedge to be pruned annually.
Mrs and Mr Waterhouse ('the respondents') own and live at the neighbouring property. They say the hedge is an important element of their garden. They don't accept that the view obstruction caused by their hedge is severe, and they disagree on the height to which the hedge might be pruned.

Do the trees form a hedge?

The Waterhouses do not dispute that the row of cypress trees was planted so as to form a hedge. The trees form a screen along the common boundary. The trees are more than 2.5 metres tall. According to s 14A(1) of the Trees Act, these are trees to which Part 2A of the Act applies.

Did the applicant make a reasonable effort to reach agreement?

Ms Luschwitz has apparently tried to reach some agreement with the Waterhouses for some time. The Waterhouses say that they made offers to prune the trees but Ms Luschwitz would not accept these offers, and so her efforts were not reasonable. Matters of views, privacy and amenity are not easily assessed subjectively, and it is common for neighbours to disagree on these issues (thus the need for a Trees Act). An applicant's refusal to accept a certain offer does not indicate insufficient effort on their part to reach some agreement. I accept that Ms Luschwitz has tried to reach some agreement with the Waterhouses, albeit unsuccessfully.

Do the trees severely obstruct a view from the applicant's dwelling?

To assess view loss, the Court considers factors such as the view that was available to the applicant previously, the extent of obstruction of that view and the extent of the remaining view, and from where the view has been lost.
Ms Luschwitz emphasised the importance to her of the view across the water to her east at the time she purchased her property. She described the reflection in the water of lights at Darling Point and the moon above. Boats in the bay form a picturesque scene. The view is obstructed from her kitchen, lounge, dining room and bedroom. Ms Luschwitz says this is her principal view. My onsite observations confirmed that the view she describes is pleasant, and would have been more completely available to her before the trees grew. Significant parts of the water, and the interface between land and water, are now obstructed by the trees.
The Waterhouses point out that water views are still available to Ms Luschwitz further to the north. They argue that that the view is across a side boundary. Mr Berveling, counsel for the Waterhouses, took the Court to several of the Court's judgments in hedge matters addressing severity of view obstruction: Holland v Bell [2017] NSWLEC 1322, Macourt v Baudinet & anor [2016] NSWLEC 1631 and Penklis & anor v Maley & anor [2016] NSWLEC 1615. I have reviewed these judgments and considered any salient points raised therein. However, I also note that each case that comes before the Court has its own set of circumstances and must be judged on its own merits.
Mr Berveling pointed to the principle regarding views from Tenacity Consulting v Waringah [2004] NSWLEC 140, and in particular the second step of that principle that includes (at paragraph 27): For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. Mr Berveling points out that the trees are along a common boundary that is the respondents' side boundary. That may be, but Ms Luschwitz lives in an apartment building, her apartment shares solid walls with other apartments, and her principal views, available through large glass windows and doors, are to the east, across the common boundary.
Generally, and as found in Tenacity, views from living areas may deserve greater consideration than those from bedrooms, bathrooms or utility rooms. The views here, and their obstruction, are similar from all rooms facing east, including the lounge and dining rooms.
Mr Berveling also took the Court to Haindl v Daisch [2011] NSWLEC 1145, where Moore SC and Hewett (AC) expressed their opinion at (26): However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
Mr Berveling argues that a water view is still available to Ms Luschwitz further to the north, and the whole view should not be sliced up with the purpose of finding a severe obstruction of a part of that view. However, I find that the view to the east is Ms Luschwitz's principal view - her living areas directly face the water views now obstructed by the hedge. Views to the north remain, but are not the principal view.
Having observed the view, I understand the value of the obstructed view and can see that it was once available to the applicant. I accept that Ms Luschwitz's view is severely obstructed by the hedge. However, before making any orders, I must balance the applicant's interest in having the obstruction remedied against any reasons not to interfere with the trees, or at least to interfere to a lesser extent than the applicant seeks.

Matters to consider before making orders

I have considered the matters listed at s 14F of the Trees Act, with particular attention given to issues of privacy, heritage, planning and amenity, as raised by the parties.
The trees are planted in a row close to the common boundary. This boundary is some distance from Ms Luschwitz's apartment. The hedge is also well away from the Waterhouses' dwelling, on a lower terrace closer to the water. The hedge is next to a wall on the common boundary, which it screens.
The trees were planted after Ms Luschwitz had lived at her property for some years, and grew into her views while she has lived there.
The Waterhouses argue that a heritage listing applies to the property. That listing, fixed around 1998, includes the gardens and three mature trees. The hedge is not mentioned, unsurprisingly, as it did not exist then. The Waterhouses argue that the hedge is now an important element of the gardens, which are afforded protection by the heritage listing. If the hedge contributes to the characteristics of the garden identified in the heritage listing, it follows that it should be considered in that context. However the heritage listing does not deny the property owner the ability to maintain, prune, remove and replant vegetation. Pruning of a hedge is routine maintenance. These trees have been planted as a hedge and the Waterhouses concede that pruning is acceptable - it is only the height of pruning on which they disagree with Ms Luschwitz. The level to which they disagree is relatively minor, and either option would make little or no material difference to the trees' appearance or health, and would not significantly affect the amenity of the garden overall.
The Waterhouses have gained development consent to construct a pavilion on this lower terrace of their rear garden. Consent was granted several years ago, but no works have begun. The Waterhouses argue that the pavilion's roof will obstruct the lower part Ms Luschwitz's view, so there is no point pruning trees in the hedge below that height. They took the Court to plans that show the pavilion's height. I give this little weight. Firstly, there is only consent to construct a pavilion - there is no pavilion there at the moment, and no obligation for it to be built. Secondly, the Waterhouses conceded at the hearing that the obstruction caused by the pavilion roof may be less than they initially perceived. The difference between their revised proposed pruning height and the orders sought by Ms Luschwitz are relatively minor. I therefore do not consider the potential presence of the pavilion as significant in determining this matter.
The trees themselves have no historical, cultural or social values beyond being a small element of a large garden that has a heritage listing. They do not contribute to the local ecosystem or to soil stability.
The trees contribute to the Waterhouses' garden amenity and design. They planted the trees to screen the wall of the neighbouring garage, and to define their property boundary more clearly. Pruning will have little impact on this.
The Waterhouses argue that the hedge provides them with privacy. Only the tops of the trees, beyond the top of the boundary wall, can provide any privacy. The hedge does not contribute privacy to the Waterhouses' dwelling, from which it is well distant. It is privacy in the garden area that concerns the Waterhouses. While some expectation of privacy here might be reasonable, it would be difficult to achieve full privacy in a large spreading garden next to a multi-storey apartment building. Ms Luschwitz's apartment is on a relatively low floor of the building and she cannot see into the Waterhouses' garden. Apartments higher above her have a view into the garden. A taller hedge might prevent overlooking from some of these, but not from the uppermost ones. It appears that pruning the trees to the garage roof, as sought by Ms Luschwitz, or a little higher, as suggested by the Waterhouses, would not significantly affect the Waterhouses' privacy.
The trees are suited to being maintained as a hedge. The pruning sought by the applicant would not significantly damage the trees or prevent them being maintained as a hedge into the future.
Other trees and some buildings obstruct parts of the view available to Ms Luschwitz, but the obstruction to her principal view is caused by the hedge.

To what height should the trees be pruned?

Having considered the matters above, I see no issue that outweighs the applicant's interests in having the trees pruned. The remaining question, then, is to what height the trees should be pruned. Ms Luschwitz contends that the trees should be pruned to the height of the garage roof once a year. She understands that there will be some encroachment into the view as the tops of the trees grow each year between annual pruning events.
Prior to the hearing, the Waterhouses had not seen the view from Ms Luschwitz's apartment. They submit that, having now seen the view obstruction, they would accept pruning of the trees to a height of 40 cm above the garage roof, equivalent to the height of a stone wall that comes above the garage wall to the south of the trees. They contend this would restore some water views. Ms Luschwitz argues that the trees grow quickly and their annual encroachment from that height into the remaining view would still be too severe.
In my mind, comparing the two options presented, the differing outcomes to the Waterhouses are less significant than the potential benefit to Ms Luschwitz of pruning to the height she proposes. Therefore, I will order annual pruning of the trees to the height of the garage roof.

Orders

The orders of the Court are: 1. The application is upheld. 2. Within 30 days of the date of these orders, and thereafter annually in the month of November, the respondents are to engage a suitably qualified arborist or horticulturist (minimum AQF level 3) to prune each tree in the hedge so that it is no taller than the garage roof immediately adjacent to that tree. 3. The works in (2) are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The respondents are to give the applicant 7 days' notice of the pruning every year.

D Galwey Acting Commissioner of the Court

Amendments 31 October 2017 - Cover page amended to reflect correct class. 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: 31 October 2017

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