Pena & anor v Beeche & anor

Land and Environment Court (NSW)|2017-04-10|Before: Craig J

judgment

COMMISSIONER: The applicants, who own a property in Bronte, have applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a row of 13 conifers growing on the adjoining property to the west.
The orders are sought on the applicants' contention that the trees have damaged the timber paling dividing fence and could damage a retaining wall on which the fence sits. They are also concerned that the trees, or their branches, could crack and fall during violent storms and thus potentially cause injury to anyone on the applicants' property. Apart from damage and potential injury, the applicants maintain that the trees block afternoon sunlight to windows of their dwelling and block views from their dwelling.
The trees are a row of Leyland Cypress planted about 20 years ago by the previous owners of the respondents' property.
The respondents reject the applicants' request to remove the trees but would agree to pruning an additional 1.5 m off the top and to trim overhanging branches. Given the proximity of nearby apartment buildings, the respondents value the trees for the privacy they afford their property.

The Part 2 application

In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

The timber fence

In their application claim form, the applicants contend that the paling fence on the common boundary is being damaged and pushed out of alignment by the trees. There is no claim for any replacement of the fence.
During the on-site hearing, the trees were inspected from the respondents' property. None of the 13 trees were in contact with the fence. The only tree that could have any potential contact is tree #7 however the nearest part of it is some 100mm away. I observed the fence to be in relatively poor condition as a consequence of its age and materials however, despite being on a slight lean, it appears adequate for its purpose.
There is a question mark as to whether the fence is located on the boundary, and thus the joint responsibility of the parties, or is located on the respondents' property. The Court has no jurisdiction to make orders for damage caused by a respondent's trees to property on a respondent's land.
During the hearing, the applicants elected not to press this issue.

The retaining wall

The applicants are fearful that the given the height and weight of the row of trees, which were planted after the retaining wall was constructed, the retaining wall may fail. They state that in periods of heavy rain, water sometimes pours through mortar joints and they have observed some bowing of the wall.
The respondents recently obtained advice from a structural engineer. The engineer met with the applicants and inspected the wall from their property. In the engineer's report included in the respondents' bundle of evidence, it appears that the applicants constructed the reinforced concrete block retaining wall on their western boundary some 40 years ago. While there is a slight lean and a slight vertical crack towards the centre of the wall, the engineer concludes that while it is not built to current standards, the retaining wall is in reasonable condition for its age and structural configuration and is not at imminent risk of failure. He found no visible evidence to suggest that the effects of the material within the respondents' rear garden would cause the wall to fail.
Absent any evidence to the contrary, there is nothing to suggest that what the applicants fear is likely to be realised in the near or foreseeable future. As a result, this element of the application is dismissed.

Potential injury

The applicants state that in a recent storm, a large branch split from the tree at the end of the row. While it did no damage to anything and caused no injury to any person, the applicants are concerned that further failures may occur and which may cause injury or damage.
Absent any independent arboricultural evidence tendered by either party and with the arboricultural expertise I bring to the court, I saw nothing that would lead me to conclude that injury to any person as a consequence of any of the respondents' trees is likely to occur in the foreseeable future.
Therefore, this element of the application, and the whole of the Part 2 application, is dismissed.
As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

The Part 2A application

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 if so, are they at least 2.5m tall.
There is no dispute that the trees the subject of the application meet the tests in s 14A(1) of the Trees Act.
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.

Sunlight

The applicants have nominated three west-facing windows of their dwelling. In the application claim form they state that there is complete blockage of sunlight from the west from 2pm to 7pm in summer and from 1pm to 6pm in winter.
W1 is the west-facing window of a sunroom located at the rear of the first floor. W2 and W3 are west-facing windows of a ground floor spare room.
The western façade of the applicants' property is approximately 1m from the common boundary. Opposite W2 and W3 is the concrete block retaining wall which at that point is approximately 1.5m high and on top of which is a fence at least 1.5m high. The top of the fence is above the top of W2 and W3. The respondents' two storey dwelling is approximately 700mm or thereabouts from the common boundary. Trees 1 and 2 are directly opposite the windows. Behind these trees, on the respondents' property, is a privacy screen set back from the dividing fence but higher than the fence.
The applicants did not provide any evidence by way of shadow diagrams or timed and dated photographs that may have indicated the effects of the respondents' trees on these windows. During the hearing the respondents were willing to tender shadow diagrams sourced from the internet however the applicants objected and the diagrams were not tendered.
In regards to the downstairs windows, given the relative location of these windows to the fence and the respondents' dwelling, it would seem to me to be highly unlikely, even absent the respondents' trees, that these windows would receive any direct sunlight [The Court has accepted the word 'sunlight' to be 'direct sunlight' rather than just daylight see Drewett v Best [2010] NSWLEC 1305 at paragraph [17].] In my view, the blockage is principally from the fence and the respondents' two storey dwelling.
While some of the trees may cause be some obstruction of very late afternoon sun in the summer months to W1, the principal obstruction during the hours nominated in the claim form would most likely be the respondents' dwelling. However, this is speculation as there is insufficient probative evidence to meet the requisite level of satisfaction required by s 14E(2)(a)(i) and any consequential making of orders. On this basis, the application in regards to sunlight is dismissed.

Views

The applicants contend that the respondents' trees severely obstruct views to the west and southwest from the west-facing (W1) and south-facing windows of the sunroom at the rear of the dwelling and from the adjoining rear deck. The obscured views are more open views through to other trees in other backyards and of the sky. The applicants submit that the proximity and height of the trees creates a claustrophobic feeling. They wish to regain the more open view they enjoyed when they purchased their property about 40 years ago.
In determining severity of impact, the Court frequently 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.
In applying the Principle in Tenacity and the findings in Haindl to this matter, the view in question is an ordinary (as opposed to an extraordinary) view of residential properties and associated vegetation in an established residential area comprising relatively small lots and some residential flat buildings. The view is across a side boundary from a living area. When the whole of the view from the nominated viewing positions is considered, there are open views of residential properties, vegetation and the sky to the southeast across the eastern boundary. The view across the rear or southern boundary is of the adjoining residential flat building. Given the relatively narrow width of the applicants' property, the view of the flat building is partially screened by vegetation on other lots, including the respondents' trees. I also note that the sofa in the sunroom faces to the east and thus away from the trees.
While I accept that the applicants value the view they used to have, I am not satisfied to the requisite level that the obstruction is severe. As the jurisdictional test is not met, this element of the Part 2A application is also dismissed.

Orders

Given the findings discussed in the preceding paragraphs, the Orders of the Court are: 1. The application in its entirety is dismissed.

Judy Fakes 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 April 2017

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