Solicitors:
Respondents: Shaw Reynolds Lawyers
File Number(s): 312096 of 2016
[2]
Judgment
COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a row of trees growing on the respondents' property. The orders are sought on the basis that the trees severely obstruct views of the Georges River from her Sylvania dwelling.
The respondents value the trees for privacy. The trees were planted in about 2012 in accordance with approved plans and conditions associated with the construction of the respondents' dwelling. Sutherland Shire Council granted development consent in 2008.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and are they at least 2.5m tall?
The trees are a row of Lillypillies planted at the rear of the respondents' property along the base of a retaining wall which forms the northern boundary of the applicant's property. The trees have been planted and maintained as a hedge. At the time of the hearing the trees were approximately 4m tall. Therefore, the trees are trees to which Part 2A applies.
The key test in applications made under Part 2A is found in s 14E(2) which 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 applicant has nominated five viewing locations on the ground level of her two storey dwelling. The views are from north-facing windows and terraces. The views to the north are across the Georges River to Bald Face Reserve, Blakehurst and Kyle Bay, and to the northwest to Kangaroo Point. The viewing locations are:
V1 - sitting and standing views from the kitchen/dining area and associated terrace;
V2 & V3 - sitting and standing views from the formal living room;
V4 - sitting and standing views from the dining room;
V5 - sitting and standing views from the living area of an attached flat.
The applicant purchased her property in 1963 and carried out extensions in 1983. The applicant contends that before the trees were planted, the view of the Georges River and associated boat traffic was unobstructed. In further submissions, the applicant contends that maintaining the hedge at a lower height, or removing and replacing the trees with a smaller species to 2.5m, would not compromise the respondents' privacy as there is no direct overlooking of any habitable room from the applicant's property; the area is a driveway leading to a garage and front door. The applicant maintains that in their current state, the trees effectively form a solid green wall
The respondents' position is that prior to the construction of their new dwelling, there were a number of trees on the site that obstructed views from the applicant's property. They also contend that the trees were conditioned by council in order to improve the visual amenity from the applicant's property as a consequence of the construction of their garage and that this action was in response to submissions made by the applicant against their development application. They assert that the trees are shown on the approved plans as being 3-4m high and that the trees have been regularly maintained at 4m or approximately 1.2m above the top of the applicant's paved terrace.
During the on-site hearing I made the following observations. From a standing position from all viewing points the river and opposite shoreline can be seen. The southern shoreline is obscured by downslope dwellings, including the respondents' dwelling. A portion of the river view is obscured by the hedge.
From a sitting position in V1 there is a partial view through a gap in the vegetation of the river and the opposite shoreline.
Sitting views from the formal lounge area (V2-V3) and completely obscured.
In the dining room (V4), sitting views to the north are completely obstructed however there are partial views to the northwest.
There is only a minor obstruction of the view from V5 from both sitting and standing positions.
As it is important to assess the views available from the whole of the property, the views from the first floor living room and terrace were noted. From this level the expansive views, from both sitting and standing positions, are unobstructed by the plants the subject of the application.
[3]
Consideration
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.
In a number of decisions including Ball v Bahramali [2010] NSWLEC 1334, 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 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 applying the approach in Tenacity as well as the principles considered by the other cases to this matter, the views are not of iconic structures but are of water and the land-water interface including relatively natural landscape features. It is agreed that these are desirable views. While in 1963 there may have been unobstructed whole views of the river (although there is no evidence of this), photographs taken prior to the approval of the respondents' development [included in a report by Richard Lamb & Associates on behalf of the applicant and submitted to Sutherland Shire Council - included in Exhibit 1] show existing vegetation obscuring the north to north-eastern portion of the available view from V1-V3.
The view is principally across a rear boundary with some of the view to the north-west being across a side boundary. As stated above, I observed only partial obstruction of part of the water from standing positions. The only area from which sitting positions were completely, and in my opinion, severely obstructed, was the formal lounge room. When the whole of the property is considered, there are unobstructed panoramic views from the upper floor living area and terrace.
The nominated rooms on the ground floor are all living areas as opposed to bedrooms or service areas.
Therefore the only viewing position from which s 14E(2)(a)(ii) might be satisfied, that is where there is a severe obstruction of a view as a consequence of trees to which the Part applies, is V2-3 from sitting positions. However, while I note that the applicant is distressed about losing views she has enjoyed for many decades, and while I agree with the applicant that reducing the height of the hedge to be level with the terrace floor would not unduly compromise the respondents' privacy, the Court has consistently applied the assessment approach in Tenacity and overall, I find that the threshold in s 14E(2)(a)(ii) of a severe obstruction is not achieved.
Therefore, the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
[4]
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Decision last updated: 30 January 2017