COMMISSIONER: In August 2014 the applicants moved into their new home in Northwood. They maintain that at that time, they had the benefit of unobstructed views to the south-southwest of the Lane Cove River. The applicants contend that since purchasing their property, bamboo planted on the respondent's adjoining property has severely obstructed those views and will continue to do so if left unchecked.
The applicants have applied under s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act') for orders seeking the pruning of three hedges on the respondent's property to a height of 1.5m above ground level and subsequent maintenance of those plants every three months. They also seek orders limiting any future planting of bamboo or similar hedging along the common boundary such that no future planting is any higher than 1.2m above ground level.
Since the filing of the application in May 2017, the respondent has undertaken some pruning of the trees, but not to the height sought by the applicants, as the respondent values the privacy the trees afford her pool and dwelling.
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, do they rise to a height of least 2.5m above ground level?
There are three groups of trees nominated by the applicants. Hedge 1 is a row/group of bamboo growing at the western end of a raised planter box constructed along the respondent's northern boundary. Hedge 2 is a row of Lillypillies towards the centre of the planter, and Hedge 3 is another row of bamboo towards the eastern end of the planter box. During the hearing, the applicants determined not to press Hedge 3.
The respondent, through her counsel, Dr Smith, accepts that the trees are trees to which Part 2A applies and I agree.
The next jurisdictional test is provided by s 14E(1)(a) which requires that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated. While the applicants remain dissatisfied with the outcome, I am satisfied to the extent required by s 14E(1)(a) that a reasonable effort has been made.
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.
While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
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 regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
[2]
Sunlight
In their application claim form, the applicants nominate 10 windows on the south-south-eastern façade of their two-storey dwelling to which sunlight is severely obstructed by the respondent's trees.
Windows W1-W5 are on the lower ground floor and windows W6-10 are on the ground floor.
During the on-site hearing the applicants decided not to press their claim in regards to windows W3, W4, W5, W8 and W10 as these windows are frosted.
Windows W1-W2 are windows of the main bedroom on the south-western corner of the lower ground floor, W6-7 are large full-size windows of the living room above W1-W2, and W9 is the south-southwest facing window of a study at the south-eastern corner of the ground floor of the applicants' dwelling.
The applicants have not provided any shadow diagrams or dated photographs demonstrating the obstruction of sunlight to these windows as a consequence of the trees in the nominated hedges.
As stated above, all windows face south-southeast. In my opinion, given this orientation, it is unlikely that any of these windows will receive direct sunlight except perhaps for brief periods around the summer solstice.
While there is some obstruction of light to W9 - the rear study, as a consequence of the Lillypilly trees, no orders will be made for any intervention with the trees for the following reasons.
As submitted by Dr Smith for the respondent, Part 2A of the Trees Act uses the word 'sunlight'. In Drewett v Best [2010] NSWLEC 1305 at [17] the Court determined that the word 'sunlight' is to be taken as meaning 'direct sunlight' rather than simply 'daylight' or ambient light.
It would appear that the Lillypilly hedge pre-existed the 2009 purchase of the respondent's property and thus the 2014 purchase of the applicants' property. While limited weight is usually given to real-estate sales brochures, photographs included in material filed by both parties, but particularly by the respondent (Exhibit 3), demonstrate the well-established Lillypillies in 2009. For the reasons provided in McDougall v Phillip [2011] NSWLEC 1280 at [23] the inclusion of Part 2A into the Trees Act in 2010 did not establish the right to a view or sunlight not available to an applicant when they purchased their property. The evidence, such as it is, suggests that the Lillypilly trees would have obstructed some very limited direct sunlight to (and views from) W9 at the time the applicants purchased their property.
On this basis I am not satisfied that the jurisdictional tests in s 14E(2) are met in regards to the obstruction of sunlight and this element of the application is dismissed.
[3]
Views
The applicants contend that the respondent's trees, in particular the bamboo in Hedge 1 and some of the Lillypilly trees in Hedge 2, severely obstruct views to the south-southwest of the Lane Cove River, and of Northwood Wharf, from their dwelling.
The nominated viewing points are: V1 and V2 through the lower ground floor bedroom windows W1 and W2; V3 and V4 through the ground floor windows W6 and W7 of the open plan living/ dining room; and V5 from the ground floor study through W9. The applicants press the loss of views from both sitting and standing positions.
Photographs included in the application claim form, taken by the applicants in January and April 2017, illustrate the obstruction of views from the nominated viewing points. The applicants submit that there was no bamboo present when they purchased their property and the views were thus unobstructed.
In support of their claim, the applicants engaged Mr Ross Jackson, consulting arborist, to consider the issues raised by the applicants and to make recommendations. Mr Jackson inspected the site on 24 July 2017. In his report (Exhibit B), Mr Jackson opines that the loss of view from the top floor (ground floor) of the applicants' dwelling is due to Giant Bamboo (Hedge 1) and the loss of sunlight to the study (W9) is due to the Lillypilly hedge. He recommends the Bamboo, due to its vigour, be pruned on an annual basis to 1.5m below the floor level of the living room and the Lillypillies to be pruned to 400mm below the bottom of the study window.
The respondent engaged Dr Richard Lamb, a consultant specialising in view loss and visual impacts, to prepare a report (Exhibit 2). Dr Lamb attended the parties' properties on 4 September 2017. In his report, Dr Lamb describes the nature of the views available from the windows nominated in the claim form and from other relevant windows and viewing positions throughout the applicants' dwelling.
In regards to the ground floor, Dr Lamb at [20] describes the available view as "panoramic, extending from the Northwood shore, including the Respondent's property around and though Woolwich to the south to Longueville to the west, encompassing the Lane Cove River and Woodford Bay." He notes that part of both the sitting and standing views from the western part of the living room towards Northwood Wharf are blocked by some bamboo [in Hedge 1]. However, despite some blockage, Dr Lamb concludes that overall, the obstruction is not severe. He cites a number of court cases relevant to Part 2A applications. Similar findings are made for the obstruction of views from the bedroom below. Dr Lamb notes that some water is visible through the Lillypilly hedge through the study window W9, and so too is the upper deck around the master bedroom of the respondent's dwelling.
Dr Lamb opines that the bamboo and Lillypilly plantings protect living areas of the respondent's property from overlooking and that reducing the trees to the height of the dividing fence would be unreasonable and unnecessary.
During the on-site hearing I had the benefit of making my own observations from the relevant viewing positions. While I accept that the bamboo in Hedge 1 was taller when the application was made, as considered in s 14E(2)(a), the severity of obstruction must be determined at the time of the hearing.
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, 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.
I accept that the view in contention is a valued view of water and the land water interface, however it is across a side boundary and it is one relatively small portion of the overall view available from both sitting and standing positions in the master bedroom and from many positions in the open plan living room. The applicants also have a large deck adjoining both of these rooms; the decks project further forward and would be unconstrained by the bamboo.
I concur with Dr Lamb's findings that the loss of views from V1 and V2 (lower ground floor bedroom) and from V3 and V4 (ground floor living room) as a consequence of the bamboo, is not severe and thus s 14E(2)(a)(ii) is not met for these elements of the application. As such, the Court has no jurisdiction to make any orders for any intervention with the bamboo in Hedge 1.
In respect of the obstruction of views from the rear study (V5), while I accept that the obstruction of the view of the water is severe, I am not satisfied under s 14E(2)(b) that the interests of the applicants in remedying the obstruction outweigh other reasons for not interfering with the trees. In this regard I note the findings in [20] of this judgment which suggest that the Lillypillies pre-existed the applicants' purchase of their property. Similarly, the applicants have not provided any evidence of the view available to them from that window when they purchased their property. From a sitting position at the desk in that room, the majority of the field of view is occupied by a computer screen. I also accept Dr Smith's submission that far better views are easily enjoyed from other areas of the applicants' dwelling. Therefore, as s 14E(2) is not met for V5, this element of the application is also dismissed.
[4]
Conclusions and orders
For the reasons given in this judgment, the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 12 September 2017