Christine and George Penklis ('the applicants') purchased their Vaucluse property in 2006. From the rear of their dwelling they had views of the harbour, Harbour Bridge, Opera House, CBD and parts of the eastern suburbs such as Double Bay. Their neighbours, Mark and Karen Maley ('the respondents'), enjoyed similar views. Since then both the Penklis dwelling and the Maley dwelling have undergone renovations. As with any development in close proximity to other dwellings, this has involved a balance of maintaining or improving amenity, including access to views, while protecting privacy and minimising overlooking.
Concerned that the new deck at the rear of the Penklis dwelling would give rise to overlooking issues, the Maleys planted a row of six Shiny Xylosma (Xylosma congestum) trees ('the hedge') along their northern boundary.
The trees have grown to a height where they partly obstruct the Penklises' views. They have applied to the Court, pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the trees to be removed or pruned so as to restore their views.
The hearing took place on site, allowing observations of the views, trees and privacy issues. Two experts attended and gave evidence: Ms Catriona Mackenzie, arboriculturist and landscape designer, for the applicants; and Ms Elke Haege, arboriculturist and landscape architect, for the respondents.
The six trees were planted along the northern side of the Maleys' deck, between their deck and the common (side) boundary with the Penklises' property. They are all more than 2.5 metres tall. According to s 14A(1) of the Trees Act they are trees to which Part 2A of the Act applies.
The Penklises seek orders for the respondents to remove the trees. In the alternative, they seek orders for the trees to be maintained at a maximum height equivalent to a ground floor awning on the respondents' property; or for trees T3-T6 to be maintained at that height and for the two trees at the hedge's western end, T1 and T2, to be removed. They seek orders for any trees replanted here to be maintained at a height no greater than the height of the awning. These are all orders within the Court's jurisdiction at s 14D of the Trees Act.
The application filed with the Court claimed the trees obstructed both sunlight and views, however at the hearing the applicant pressed only that part of the application regarding views.
According to s 14E(2) of the Trees Act:
(2) The Court must not make an order under this Part unless it is satisfied that:
(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 applicants argue that the obstruction of a view caused by the hedge is severe and justifies the orders they seek. The respondents argue that the hedge obstructs very little of the applicants' view and that a privacy screen also obstructs the view principally lost. According to s 14F of the Trees Act, I must consider a range of relevant matters in determining this application, including anything else that may be contributing to the view obstruction (s 14F(m)).
[3]
Views
The application includes eight views.
View 1 is from the southern section of the living room through an arched doorway that provides access to the external balcony.
View 2 is from the northern end of the same living room through an internal archway adjoining the family room.
View 3 is from the covered section of balcony outside the southern end of the living room.
View 4 is from the family room across the applicants' terrace.
View 5 is from the terrace.
View 6 is from a section of the dining room through an internal archway adjoining the family room.
View 7 is from the northern end of the dining room through another internal archway adjacent to an internal spiral staircase.
View 8 is from the top of the spiral staircase, or the 'anteroom', through the family room and across the terrace.
The plan below showing the view locations (V#) is from Appendix A of Ms Haege's report (Exhibit 6). I use this plan rather than the applicants' plans because it shows the locations of the trees more accurately.
Figure 1: Plan showing trees and viewing locations (Exhibit 6, Appendix A)
Views include the harbour, Harbour Bridge, Opera House, northern suburbs, eastern suburbs, rooftops, trees and sky.
The applicants say that all eight views are severely obstructed.
The respondents say that only View 1 could be perceived as severely obstructed, and argue that View 1 is also obstructed by other structures and landscape features. The applicants' arboricultural expert, Ms Mackenzie, partly concurred with this, saying that the view obstruction was substantial from other viewpoints, but could be described as 'severe' only at View 1.
[4]
Slicing up of views
Before considering the individual views described above, the extent to which the applicants' overall views have been divided up by the applicants into supposedly separate and distinct views needs consideration. There are two parts to this: firstly, the views from separate locations in a dwelling (view points); and secondly the extent of the view available from each of those viewing locations. During the respondents' submissions Mr Johnson referred the Court to Haindl v Daisch [2011] NSWLEC 1145.
At paragraph 26 of Haindl Moore SC and Hewett AC addressed the second issue above:
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.
In the preceding paragraph the Commissioners stated that, should there be different viewing locations in a dwelling, the view obstruction "must be tested for each of those views".
In the application before me the applicants claim a severe view obstruction from many viewing locations, which therefore must be considered separately (and in their totality). They have also sliced up the view from each of those locations.
The Trees Act leaves room for consideration of various views from a dwelling by referring to obstruction of "any view from a dwelling" (for instance, ss 14B(b) and 14D(1)(b)) and "a view from a dwelling" (s 14E(2)(a)(ii)). However at s 14F matters for consideration by the Court include "the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view" (s 14F(q)) and "the part of the dwelling… from which a view is obstructed" (s 14F(r)).
As I accept the respondents' submission that only View 1 could be considered severely obstructed, for reasons explained below, I will first address each of the other views before returning to View 1.
[5]
View 2
View 2 is from the northern end of the living room at the doorway to the dining room, and is a view from an internal room through an archway separating the family room. Harbour views are available. Trees 1 & 2 obstruct the view partially. There is no seating here and it is a zone of transition between rooms. Noting the extent of the view still available (s 14F(q)) I am not satisfied that the view obstruction caused by trees is severe. Even if I were so satisfied, I would not make any orders on that basis when I consider the transitional use and internal location of this view point (s 14F(r)).
[6]
View 3
View 3 is from the small covered balcony outside the southern end of the living room. Between pillars supporting its roof the principal harbour view to the west is unobstructed. Trees in the neighbouring hedge obstruct the southern part of the view. Again, I am not satisfied that the view obstruction is severe when I consider the extent of the view still available (s 14F(q)). The expansive terrace (V5) appears to be set up for entertaining, whereas there were no submissions that this small covered balcony receives significant use.
[7]
View 4
View 4 is from the family room through large glass windows to the terrace. The principal harbour views to the west, where the rear of the dwelling faces, are unobstructed. Trees in the neighbouring hedge obstruct only the southern part of the view. In Figure 4 (further below), showing the view from the dining room (V6), the extent of view obstruction caused by the trees can be seen at the left of the photo. Moving into the family room from the dining room, the remaining harbour views only become more expansive. Considering the extent of the remaining view (s 14F(q) I am not satisfied that there is a severe view obstruction here.
[8]
View 5
The outdoor terrace is a large area set up for spending time and entertaining. The stitched panorama photographs below show the expansive view, including the principal view to the west of the harbour, Harbour Bridge, Opera House and CBD.
Figure 2: View 5 from the terrace (Stitched panorama from Exhibit 6, Appendix B)
The applicants argue that the obstruction of the view to the south is severe. However, as explained by the Commissioners in Haindl, such slicing up and selection of only one small part of an overall view is not the intended interpretation of the Act. Considering the remaining view (s 14F(q)) I am not satisfied that neighbouring trees cause a severe obstruction of View 5.
The photograph below was taken before the privacy screen was installed at the terrace's southern edge, and before the trees grew to their current height. Large tree canopies a small distance further to the south obstructed the views at that time. Those trees remain and were observed from the respondents' property at the onsite hearing. If the view to the south was the principal view from the terrace (which it isn't) I would still not be minded to make orders when considering what else contributes to the view obstruction (s 14F(m)).
Figure 3: Southern part of View 5 (Annexure L of Exhibit A, the Tree Dispute Application)
[9]
View 6
The view from the dining room (View 6) is shown in the photograph below. Trees in the hedge can be seen through the southernmost glass panel at the left of the photograph. Considering the extent of the remaining view (s 14F(q)) and the internal location of the room (s 14F(r)) I am not satisfied that trees cause a severe view obstruction here.
Figure 4: View from dining room (Photo from Exhibit 6, Appendix B)
[10]
View 7
The view from the northern end of the dining room is also from an internal room, through another room. The extent of view obstruction is similar to that from View 6, and again I do not find it to be severe. Even if it were severe, the expectation to maintain every part of every view from an internal room of the applicant's dwelling is not one that would carry much weight in the balancing of arguments for and against interfering with the trees, as the overall views from the rear of the dwelling remain unobstructed and remarkable.
[11]
View 8
From the top of an internal staircase, harbour views remain available. The obstruction of a partial view of the eastern suburbs would not, in my mind, amount to severe. This is a part of the dwelling through which people move, rather than settle to enjoy a view. Even if the obstruction was severe here it would be unlikely that orders for interfering with the hedge would be made on that basis.
[12]
View 1
From the southern end of the living room the view that might be possible through the arched doorway would include harbour glimpses and possibly the CBD. There is a roof over the balcony outside this doorway, supported by a solid pillar. A privacy screen extends along the southern edge of the terrace, further distant from the door. The privacy screen, required by a condition of the Development Application consent for additions to the applicants' dwelling, was a matter of extensive submissions.
The view out through this doorway is shown in the photograph below, copied from Ms Mackenzie's report (Exhibit B). The location of the view point in this photograph is consistent with the view I observed at the onsite hearing when I was invited to sit on a couch in this room and look back over my left shoulder. The couch faces away from this view.
Figure 5: View 1 (Exhibit B)
Standing closer to the doorway the view appears more like that shown in the photograph below, copied from Ms Haege's report.
Figure 6: View 1 (Exhibit 6)
Ms Haege's analysis of the above image was that the part of the hedge above the privacy screen obstructed less than 10% of the available view. The applicants argue that the panels of the privacy screen are angled so that views are available through the screen, but I noted that these are very limited at best, and the more distant part of the privacy screen itself obstructs views from this viewing point.
The Maleys contend that the privacy screen does not meet the aims of the development approval for works at the Penklises' dwelling. They say that if it did meet those requirements, the applicants would not be able to view the harbour through the screen, and also that their hedge would not have been necessary for privacy.
The Penklises argue that the privacy screen was approved and that it provides the level of screening required.
I am not satisfied that the degree of view obstruction caused by the hedge from View 1 is severe. According to s 14E(2) of the Trees Act, it follows that I cannot make orders for pruning the hedge. Even if I were satisfied that the view obstruction at this one point is severe, I would not make orders after considering the relevant matters at s 14F of the Trees Act.
The photograph copied from Ms Mackenzie's report shows that the view is also obstructed (s 14F(m)) by the verandah roof, the privacy screen, a large pillar and the door.
At s 14F(r), the Trees Act requires the Court to consider the part of the dwelling from which a view is obstructed. The viewpoint at View 1 is either from a seated position on a couch facing into the room, away from the view, or from a standing position closer to the door, a position that is not a gathering point or a focal point. The other viewpoints in other rooms are ones more likely to draw people to gather and admire views.
I do not accept that the overall quality of the views available from the Penklis dwelling are significantly affected by the neighbouring hedge, nor do I find that the hedge's presence forces them to accept a lesser level of enjoyment of their property. Views from locations in the dwelling where people might gather to enjoy those views are largely unaffected.
[13]
Conclusions
I do not find that the neighbouring hedge causes a severe obstruction of any view from the Penklises dwelling (s 14E(2)(a) of the Trees Act). Even if I accept that a severe obstruction is caused by the hedge from View 1, I find that the severity and nature of the obstruction does not justify interference with the hedge (s 14E(2)(b)). Therefore the Court's jurisdiction to make orders is not enlivened and orders can't be made.
The privacy desired by the Maleys is provided by the lower parts of their hedge, especially trees 3 - 6. Reducing the height of the trees, especially trees 1 and 2, would minimise any impact on the Penklises' view while maintaining the Maleys' privacy. Living closely with neighbours usually requires some level of compromise to maintain good relations. Although I will not be making any orders, the parties are encouraged to take reasonable steps to find some common ground.
[14]
Orders
The orders of the Court are:
1. The application is dismissed.
D Galwey
Acting Commissioner of the Court
[15]
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Decision last updated: 20 December 2016