TREES [NEIGHBOURS] Hedgeobstruction of viewstrees not on adjoining land
Judgment (5 paragraphs)
[1]
Solicitors:
Applicant: Comino Prassas Solicitors
File Number(s): 336279 of 2016
[2]
Judgment
COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the pruning of a row of Cupressus torulosa (Bhutan Cypress) growing on the respondent's property. The orders are sought on the applicant's contention that the trees are severely obstructing views of the Harbour from her Bellevue Hill apartment.
Section 14 B states:
An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of
(a) sunlight to a window of a dwelling situated on the land, or
(b) any view from a dwelling situated on the land,
If the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land [emphasis added].
The applicant has filed two Class 2 applications under s 14B of the Trees Act. The Kremnizer property adjoins the Markovits property, the subject of matter 336280 of 2016. These properties are downslope of, and to the northeast of, the applicant's property.
Across the rear of both lots is a tennis court, half of which is constructed on the Kremnizer property and half on the Mankovits property. The position of the net is close to the common boundary. The neighbours share the use of the tennis court.
Below a retaining wall on the north-eastern side of the tennis court is the row of Bhutan Cypress which runs across the two properties. According to Mr Kremnizer, the trees were planted about 35 years ago. Trees 1-17 are on the Markovits property and trees 18-27 are located on the Kremnizer property. It is possible that tree 18 is on the boundary however there is no recent survey to confirm this.
At the Court's request, Mr Kremnizer provided the Court and the applicant with a copy of a 1980 survey of the property and the accompanying Surveyor's Certificate'. Although the tennis court is not shown, the boundaries of the lot have not changed. [I have taken the liberty of making this Exhibit 1 in the proceedings.] The applicant's solicitor, Mr Comino, was invited to make written submissions.
Mr Comino subsequently provided detailed written submissions as to why the Kremnizer property should be considered as adjoining the applicant's land. The submissions are lengthy and detailed and refer to a number of findings in other matters, including a number of tree matters.
In summary, Mr Comino submits that the Trees Act does not define "adjoining land" and does not use the word "boundary" or state there must be a common boundary between the parties' properties. In particular he cites P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 152 [the very first case determined under the Trees Act], which in turn cites Hornsby Shire Council v Malcolm (1986) 60 LGRA 429. In these and other matters, Mr Comino submits that the word "adjoining" has a wider meaning and does not have to imply immediately adjoining or abutting. He also cites my decisions in Cavalier v Young [2011] NSWLEC 1152 at [4]-[5] where I held that the sharing of a corner post was sufficient connectivity to meet the test of adjoining land.
Mr Comino submits that the tennis court at the rear of both properties was constructed by Mr Markovits pursuant to a Building Application obtained in 1984. He contends that while there is no formal legal arrangement recorded on the title of either lot, the tennis court is jointly used and enjoyed by the Kremnizer and Markovits families and therefore is in common ownership. He cites Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [157] where His Honour considers that the concept of 'adjoining land' can include properties that are separated by 'other land'. Mr Comino submits that the tennis court could constitute 'other land'. In this way, he maintains that the Kremnizer land is adjoining land for the purpose of the Trees Act.
[3]
Findings - adjoining land
In P. Baer at [6] the Court stated:
6 Although Hornsby v Malcolm so held, specifically for the purposes of determining a zoning issue, that a property was to be regarded as adjoining the other property which was across the road, we are satisfied that the principle there set out by the Court of Appeal should be adopted as applicable to similar wording in the provision of the Act.
This concept was also noted, and apparently accepted by Preston CJ in his detailed discussion of elements of the Trees Act in Robson v Leischke [2008] NSWLEC 152 at paragraphs [150]-[157]. Indeed, His Honour frequently and consistently considers the word 'boundary' and the location of the tree in relation to the boundary in the context of tree disputes. I emphasise the word 'context' as Kirby J in Hornsby at [433] - [434] discusses the necessity of establishing the context of the use of the word.
In applications under both Part 2 and Part 2A of the Trees Act, the Court has quite consistently applied the common and ordinary meaning of the word 'adjoining' in the context of residential development as sharing at least part of a common boundary. Where exceptions have been made, for example P. Baer Investments - across a public road, Murray v Shoebridge [2007] NSWLEC 785 - across a public walkway, and more recently in a Part 2A application, Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 - across a road, they have all involved the public (not private) domain and all were directly opposite each other.
I note that the word 'boundary' is used in both s 12(a) and relevantly s 14F(a). The uncertainty of the ownership of a tree and its relationship to the boundary has often necessitated the making of orders for a survey to be undertaken in order to determine ownership (see for example Awad v Hardie (No 2) [2010] NSWLEC 1258).
In conclusion, on the evidence before me, I find that the Kremnizer property does not share a common boundary with the applicant's property, and thus the trees are not situated on adjoining land and therefore they are not trees to which the Trees Act applies.
However, if I am wrong in this, I will consider the next jurisdictional test in s 14E(2)(a) and the severity of impact of the Kremnizer trees on views from the applicant's dwelling.
[4]
Severity of obstruction
Section 14E(2) 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.
The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52].
In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature of the view - whether the view is of iconic structures, water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The second step considers the location from which the view is seen - across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. The third step considers the use of the rooms from which the views may be affected - views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.
The Court has also considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state:
26 However, we are of the opinion that the words a view 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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
The applicant identified six viewing locations through six windows. W1-W4 are the glass panels of the north-east facing folding door which leads from the principal open plan living area onto an adjoining balcony; W5 is a north-facing window and W6 is another north-facing window set further back into the living room.
The applicant relies on a real estate brochure provided prior to the purchase of her unit. The brochure, considered to be produced in November 2011, shows the tips of the Kremnizer's trees just projecting into the view of Rose Bay from the applicant's primary living area.
The view comprises district views of Rose Bay, Dover Heights and Vaucluse, the water of Rose Bay and further to the northeast, views of Sydney Harbour including Shark Island, views towards Manly and the opposite shoreline of Chowder Bay.
At the time of the hearing, while it is clear that the trees have grown in the time that the applicant has owned her unit, I am not satisfied that the trees are severely obstructing her views, especially when the whole of the view from her unit is considered. The view through W6 is highly constrained by the adjoining building and only partially affected by the Kremnizer's trees. While the water of Rose Bay is moderately obscured, there is only a minor obstruction of arguably the main Harbour views as a consequence of the Kremnizer's trees.
Having considered the evidence and submissions I find that the threshold level of severe obstruction required by s 14E(2)(a)(ii) is not achieved.
Therefore, on two grounds, I find that the Court has no jurisdiction to make any orders for any intervention with the trees. As a consequence,
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
[5]
Amendments
31 January 2017 - File number amended
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Decision last updated: 31 January 2017