Mathers v Webb

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Collaroy against the owner of trees growing on an adjoining property. 2The applicant is seeking orders for the "trimming of trees to [the] legal height for hedges to restrain/ prevent obstruction of a view from a dwelling". 3The respondent stated that she did not wish to prune the trees as they provide some privacy from the adjoining units to the north and they provide food for native birds and possums. The site and the hearing 4The trees are stated to be 4 Bottlebrush however they are Banksia sp. Four viewing points are nominated however, only the view from two of these is said to be severely obstructed. 5The applicant's dwelling is an east-facing second floor unit. To the east of the applicant's unit block are two blocks of units fronting Pittwater Road. Collaroy Beach is on the eastern side of Pittwater Road. The respondent's property is a ground floor unit, with associated garden, in the unit block to the southeast of the applicant's building. The applicant's unit is in excess of 100m from the beach. 6The trees in question are planted along the northern boundary fence of the respondent's property. According to the respondent they were planted by the developer of her building prior to her purchase of her unit in 2003. A photograph in exhibit 1 shows the recently planted trees and the applicant's building under construction. 7The four Banksias emerge from a dense and formally pruned Lillypilly hedge. The photograph in Exhibit 1 shows the original layout of the garden bed. According to the respondent, several of the Banksias died and were not replaced. 8Tree 1 is the most westerly of the 4 remaining Banksias; it is approximately 10m high. Tree 2 is 5m to the east and about 12m tall; tree 3 is 2m further east and about 5m tall; tree 4 is 3m to the east of tree 3 and about 10m tall. The canopies of trees 2 and 3 interlock to an extent, however the canopies of all trees have an open habit typical of the species. The Banksias do not appear to have been "hedged" at any stage, although the respondent stated that they have been pruned in the past. 9The viewing points nominated by the applicant are windows W1 and W2 - windows and glass doors between the living room and balcony. W3 is the kitchen window and W4 a bedroom window. 10The applicant contends that the views from the balcony and living room, from both sitting and standing positions, are severely obstructed by the 4 Banksias. This claim is based on the view that the applicant considered he had when he purchased his property off the plan in 2003. He stated there was nothing on the plan to indicate any vegetation that would obstruct the view of the ocean, the view being the main reason for the purchase of the unit. 11We observed the view from the balcony (W1/W2). The view to the east to the ocean is between the two unit blocks to the east. The view includes the units and their gardens, trees and shrubs on council owned land adjoining the beach, the ocean, horizon and sky above. The buildings and trees, including those on the reserve comprise about 60% of the view; the ocean is about 10% and the remainder is sky. 12The view said to be obscured, is of the ocean, and to a degree, a view of waves breaking on the beach (although the sand is not always visible). Two Norfolk Island Pines on the foreshore punctuate the view. There is an extensive planting of shrubs on the dunes behind the beach. We note that the extent to which the breaking waves can be seen is limited to about 50% of that part of the beach visible through the buildings because of the shrub planting. Lateral branches of tree 1 obstruct some of the view of the waves from some viewing points on the balcony. 13We observed that approximately 50% of the view of the ocean is obstructed by the upper 4m of trees 1, 3 and perhaps 4. However, the degree of obstruction varies from where one stands or sits on the balcony. The trees do not form a solid block but filter the view. The Banksia foliage is somewhat framed by the 2 Norfolk Island Pines. 14In the living room we note that the chairs face the television on the southern wall and not the view, however we note from a sitting position that there is some obstruction and filtering of the views by the trees but the ocean is still visible. 15W3 is the kitchen window and W4 a bedroom window. The applicant does not contend that the views from these windows are presently obstructed but is concerned about future obstruction. We concur with the observation that there is no severe obstruction of the views from either of those windows as a consequence of the trees subject to the application. 16The applicant's property has an upper terrace from which there are extensive views. However, we accept that the main living area is in the vicinity of W1 and W2. The assessment framework and findings 17There are a number of jurisdictional tests that must be satisfied before the Court can consider what, if any, orders can be made. Are the trees a hedge for the purpose of the Act ? 18The first step is to determine whether the trees subject to the application satisfy s 14A. This section states that Part 2A of the Act applies only to groups of 2 or more trees that are planted so as to form a hedge, rise to a height of at least 2.5m above ground, and are on appropriately zoned land. 19The respondent contends that the trees were planted as individual specimens within a Lillypilly hedge and therefore the Banksias are not a hedge but 4 individual trees. The applicant's position is that they are a hedge, but even if they were considered to be individual trees, they still block his view and can be ordered to be pruned. 20The Act does not define a hedge. To date, the Court has taken a flexible approach in its interpretation of s 14A(1)(a) ' planted...so as to form a hedge' . This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [45], [66], [67] and elsewhere, and in McLaren v Lewis [2011] NSWLEC 1170 at [21]-[28]. 21In this matter, the assemblage of plants along the boundary comprises two species, one has been formally clipped and the other, the Banksias, have been left to take their natural form and now emerge well above the Lillypillies. Whilst the original intent may not have been a hedge of Banksias, we find that they are a component of the hedge along the northern boundary and therefore satisfy the jurisdictional test in s 14A(1). The zoning of the land is not in doubt. As s 14A is satisfied, we can proceed to the next jurisdictional test. 22However, before doing so, we should comment on the applicant's contention, as we understand it, that even if the trees were deemed to be individual trees, and they blocked his view, the Court could order their pruning. This is not the case. Part 2A of the Trees Act is the part of the Act that deals with issues relating to obstruction of views. The Part only applies to trees deemed to satisfy s 14A. If a tree was found to be an individual specimen and not part of a 'hedge' for the purpose of the Act, the Court would have no jurisdiction to order any interference with that tree for the purpose of remedying, restraining or preventing the severe obstruction of a view from a dwelling (see Wisdom at [48]). Is there an obstruction of a view and is it severe ? 23The next test is s 14E(2) which states (relevantly): (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (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 interests 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. 24Therefore, this is a two-step process. The first step is to determine if the trees are severely obstructing the view, and then if they are, the second step, requiring the balancing of interests, is taken. If the second step is necessary, the matters listed in s 14F must be considered. The use of the word 'severely' in s 14E(2)(a)(ii), sets the bar at a high level. 25In determining applications made pursuant to s 14B in respect of views, the Court has often referred to the planning principle on view sharing discussed in Tenacity Consulting v Warringah [2004] NSWLEC 140. There are several steps in assessing issues relating to views in that decision that are relevant to the determination of applications made under s14B(b). 26Firstly, what is the nature of the view? It is generally accepted that views of water are valued more highly than views of land. Whole views are valued more highly than partial views. In this case, the view is a view of the ocean and a small section of breaking waves. We accept that whilst the water comprises a relatively small percentage of the available view it is nonetheless an important element of that view. 27The second consideration is from where is the view seen. In this matter, the view is principally seen from the main living area and is a forward view, as opposed to a view across side boundaries (side views being more difficult to protect). We found little difference between what was seen from either sitting or standing positions at various locations on the balcony and inside the living room. 28The third consideration is the extent of the view that is lost. In this matter we find that the trees do obstruct the view of the water but the ocean can be seen on either side of the trees and, because of their open canopy, to an extent, through the trees. We note that in the absence of the respondent's trees, the view is limited or filtered by the vegetation, including the Norfolk Island Pines, on the foreshore reserve. 29In Tenacity , view loss, and effectively its impact, is ranked from negligible, minor, moderate, severe, to devastating. In Tenacity the proposed development would have obliterated what was described as a magnificent view from three out of four levels of a unit block. The impact was deemed to be 'severe'. Hence the Court has determined that the use of the word 'severe' in the Trees Act puts the test at a high level. 30In the matter before the Court, we consider the impact of the Banksias on the applicant's view to be moderate and not severe. Ocean views can be seen from various locations on the balcony and from the living room. 31The word 'are' in s 14E(2)(a)(ii) requires the severe obstruction to be proven at the time of the hearing and does not consider future impacts. 32As s 14E(2)(a)(ii) is not satisfied, we are not required to consider s 14E(2)(b) however, we make the following observations of some of the matters in s 14F. We note that the Banksias do provide a visual screen and therefore privacy to the respondent's ground floor unit and the second storey units in the building to her north. 33The orders sought by the applicant are "pruning to the 'legal' height". The applicant has interpreted the height of 2.5 m specified in s 14A as the 'legal limit'; as explained in McLaren v Lewis [2011] NSWLEC 1170 at [35], this is not the case. 34 However, before concluding it is worth addressing the applicant's interpretation of the Trees Act as amended in August 2010. The Act does not place a prohibition on the growing of high shrubs, trees or hedges that may at some stage obstruct sunlight or views. The height of 2.5 m is the height threshold at which the jurisdiction is, in part, enlivened. The Act does not specify any height to which all plants must be maintained. The amendment, as provided in s 14B, simply enables an owner or occupier of land to apply to the Court to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling and or of any view from a dwelling. The dwelling must be situated on an applicant's land and the trees must be trees to which Part 2A of the Act applies, that is as specified in s 14A, and be on adjoining land. Section 14D(1) enables the Court to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling and or a view from a dwelling but only if the jurisdiction is enlivened. Any orders so made may place an obligation on the owner of that hedge. 34The applicant indicated a Banksia on another property that had been "flat-topped" and suggested that this was how the respondent's trees should be pruned at an amended height of 5m. Unless plants have been frequently clipped from early on (as would occur with a more formal hedge), this style of 'pruning' is referred to as 'lopping' and is described in Australian Standard AS4373:2007 Pruning of Amenity Trees as an unacceptable practice. If we were minded to order pruning it would not be as the applicant desires as, in our opinion, this would damage the trees and probably result in denser regrowth. The only pruning we could reasonably contemplate is selective reduction pruning and thinning of some of the taller elements of the respondent's trees. 35However, as stated above, as we find that s 14E(2)(a)(ii) is not satisfied, no orders can be made for any intervention with any of the trees subject to this application. As indicated in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, a fresh application can be made. 36Therefore as a consequence of the forgoing, the Orders of the Court are: (1)The application is dismissed.