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[2011] NSWLEC 1135
Land and Environment Court (NSW)
2011-04-15
Ms J
Original judgment source is linked above.
Ms M Taylor (Solicitor - Respondent) Bartier Perry File Number(s): 20011 of 2011
Judgment 1This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Ballast Point Road Birchgrove against the owners of a property in Wharf Road Birchgrove. 2The original application sought orders with respect to the remedying of obstruction of sunlight to windows of a dwelling and obstruction of views from a dwelling however, the application with respect to sunlight has been withdrawn. 3The applicants contend that trees comprising two hedges on the respondents' property severely obstruct views from the living area on the ground floor of their dwelling (V1) and partly from the upper storey (V2 and V3). The views are said to extend from Snails Bay and Longnose Point to the northwest to Balls Head to the north, North Sydney and parts of the harbour and then to the Harbour Bridge and the CBD to the east. 4The applicants are seeking orders to reduce the trees to heights of between 2.0 and 3.0 m as specified in their application, and then maintenance at those heights. 5The respondents value the trees for the privacy they afford their swimming pool, kitchen and living room. 6Hedge 1 comprises nine Waterhousia floribunda (Water Gum) planted along the western portion of the rear boundary. The ground level on the western end is slightly higher than ground level on the eastern portion. Hedge 2 comprises nine Viburnum odoratissimum (Viburnum) [although the application shows ten trees] planted along the eastern portion of the respondents' rear fence. Each hedge is considered in turn. The Waterhousia 7The Waterhousia are planted so as to form a hedge and are around 4-5 m tall. They are on the respondents' property along the western half of the southern boundary. They satisfy s 14A of the Act so part 2A applies to this group of trees. 8From downstairs (V1) the Waterhousia do not significantly obstruct a view, as any view in that direction would be obstructed by built form and other vegetation regardless of this group of trees. We note the presence of a mature Crepe Myrtle planted in the respondents' garden in the view line to the northwest. 9From upstairs (V3), the view of Snails Bay that was pointed out by the applicants is only visible when standing in the corner of the living area, as built form and other vegetation obstruct the view from elsewhere in the room including V2. We consider that this view is not severely obstructed by the Waterhousia. 10Because the Waterhousia are not severely obstructing a view from the dwelling, according to s 14E(2)(a)(ii) of the Act the Court must not make any orders regarding these trees. Therefore, the application regarding the Waterhousia is dismissed. 11We note that an agreement has been reached between the respondents and the owners of another adjoining property to the southwest regarding the pruning of the Waterhousia but that is separate to any consideration the Court has made regarding these trees. The Viburnums 12The Viburnum have been planted so as to from a hedge. Trees T1-T7 are over 2.5 m tall while trees T8 & T9 are less than 2.5 m tall. We are satisfied that the trees form a single group and that this group of trees rises to a height of at least 2.5 m. This is consistent with Wisdom v Payn [2011] NSWLEC 1012 at [66-67]. Therefore, according to s 14A of the Act part 2A applies to this group of trees. 13The Viburnums do not obstruct any view from upstairs (V2 & V3) (photograph1547 Exhibit E; photographs 1 - 4 Exhibit 3). The Ash tree growing in the applicants' own garden partly obstructs views to the north, northeast and north-west (photographs 1547, 1558, 1563, 1559 and 1543 in Exhibit E). 14From downstairs, V1, there is a view over trees T8 and T9 as well as a gap in between the two hedges across the harbour towards the Waverton naval base (photos 1535 and 1583 exhibit E). This is a view corridor between the respondents' dwelling and 18 Wharf Road. We accept that this view is partly obstructed by tree T7. 15Also from V1, the Harbour Bridge can be seen to the east however, the southern part of the bridge is partly obscured by a Jacaranda some distance away. We accept that Viburnums T1 and T2 and possibly T3 do obstruct the view of the bridge from some sections of the downstairs living room. 16Viburnums T3-T7 obscured all views to the northeast however we observed that the dwelling and its roof at 18 Wharf Road could be discerned through the trees. Also in this vicinity between the Viburnums and 18 Wharf Road are two palms (probably Kentia Palms), a Cordyline and a Robinia. These trees are clearly seen in Photograph 2, Exhibit 3. 17The applicants contend that the view lost is of Balls Head, the skyline of North Sydney and part of the Harbour Bridge. In their affidavits, the applicants state that they used to be able to watch large tankers move from beneath the bridge to Waverton where they disappeared from view. We assume from the evidence this was in the late 1980s/1990s. 18However, that said, as previously stated, we accept that Viburnums T1 and T2 and possibly T3 do severely obstruct views of the harbour and the Harbour Bridge to the east-northeast from the rear windows and door of the dwelling at V1, thus satisfying s 14E(2)(a) of the Act. We are also prepared to put the applicants' case at its highest and accept that trees T3-T7 create a severe obstruction of views to the northeast. However, before the Court can make orders, s 14E(2)(b) of the Act must also be satisfied. To determine this we must consider the matters in s 14F. 19The relevant clauses in s 14F are: (a) Location : The Viburnums are located on the respondents' property. The applicants state that their property is only 2m from the dividing fence at its closest point. We note from a survey plan produced by Cooper and Richards, Surveyors and Consulting Engineers dated 15/03/11 (Exhibit 2) that the closest edge of balcony hand rail is 2.5 m at its closest but the closest wall of the dwelling is 3.8 m from the dividing fence at is closest at the north-eastern corner. The applicants' property is upslope of the respondents' property. Any vegetation planted along the boundary fence will be relatively close to the rear of the applicants' property. (b) Was the hedge there first? It is clear from Photographs in Exhibit E showing a family gathering in the applicants' backyard, dating from the late 1980s, there was no Viburnum hedge on what is now the respondents' property. It is possible to see a few leaves of an Oleander that was later removed. It is not clear from those photos whether or not the palms and Cordyline referred to in [16] were present at that time. No photographs of the views the applicants enjoyed when they moved in were tendered in evidence. (c) The Viburnums have grown to their current height since the applicants have owned their property. (d) There are no development consent conditions relating to the Viburnum hedge. (l) Privacy and amenity : The respondents contend that, given the location of their pool, open space and living areas at the rear of their property, being down slope of their rear neighbours at 59A, 59 and 57 Ballast Point Road, all of which are 2 storey dwellings, their privacy would be further compromised if the hedge were lowered. We observed that part of the respondents' rear yard is clearly visible from the upper balcony of the applicants' dwelling. This is illustrated in Photograph 6 in Exhibit 3. This photo shows part of the pool deck, a paved area to the east of the dwelling and the eastern portion of the rear living area. There is very little overlooking possible from the living areas on the ground floor of the applicants' dwelling. We also noted that from within the respondents' kitchen and living area there were filtered views through to the upper storeys of the adjoining three dwellings. The filtering was provided by other vegetation on the respondents' property (the Waterhousia, Magnolias and a Bougainvillea) as well as the Ash on the applicants' property. It was also clear to us that lowering the height of trees T1-T7 to 2.5 m and trees T8-T9 to 2.0 m would expose the respondents to overlooking from the upper storey at No 57 Ballast Point Road. An owner of that property, made a written statement tendered as exhibit D. As that owner was not joined in these proceedings, the only relevant part of his statement is that he considers that if the hedge was reduced to 2.5 m he would probably be able to see into the respondents' back garden but not into the living areas. He stated that his first floor level and small deck are oriented to the east-northeast and therefore away from the respondents' property. The applicants contend that given the relative elevations of the properties and the density of the area, some overlooking is inevitable. (m) Other obstructions : With respect to the partly obscured southern part of the Harbour Bridge, photograph 1547 in Exhibit E taken from the upstairs balcony towards the Harbour Bridge shows a Jacaranda as well as other distant vegetation. It illustrates why the southern part of the bridge is obscured from the ground floor (V1). In [16] we note Viburnums T3-T7 obscure all views to the northeast however we observed that the dwelling and its roof at 18 Wharf Road could be discerned through the trees. Also in this vicinity between the Viburnums and 18 Wharf Road are two palms (probably Kentia Palms), a Cordyline and a Robinia. These trees are clearly seen in Photograph 2, Exhibit 3. If the palms and Cordyline were not in existence when the applicants purchased their property, there is no reason to doubt the applicants' claim that views to the cliffs of Balls Head and the North Sydney skyline were available to them at some stage. However, it would seem to us that those trees, which we note are not part of this application, even with a lowered height of the Viburnums, would now at least partly obscure views to the northern part of the harbour. We also consider the roofline of 18 Wharf Road would always have obscured views of the harbour and passing ships from the ground floor. (p) The Viburnums are evergreen. (r) Part of the dwelling : The personal statements of both applicants concern the many hours they say they spend in the ground floor living area of their dwelling, including the kitchen. We observed the kitchen to be set back within the ground floor living area although it does look out through windows and glass doors. While the applicants accept they have extensive views from the living room and balcony on the first floor, they argue that their loss of views from the ground floor diminishes the enjoyment of that space. 20In summing up the parties' positions on how we should conclude with respect to s 14E(2)(b), the applicants are adamant that the respondents have the benefit of panoramic views from several levels at the front of their dwelling and that their views are blocked by the respondents' dwelling and their vegetation. The applicants argue that their loss of views from the downstairs living area is such that their interests in having the hedge pruned outweigh the respondents' issues of privacy. Mr Woolf on their behalf submits that it is not reasonable, given the density of the residential area in which they live, for the respondents to seek to have and to maintain total privacy. 21Mrs Taylor on behalf of the respondents submits that given the elevation of the applicants' property - up several steps to the ground floor and then up to a second floor, that planting along a boundary to achieve some privacy is something that should be expected. She also contends that the views from the upper storey of the applicants' property are panoramic but from the ground floor would only ever be partial views because of nearby buildings and other vegetation. She considers the view from the kitchen to be marginal at best. 22In consideration of her clients' privacy she contends that there is an added need for privacy to pool areas. To achieve a reasonable degree of privacy to the respondents' living area, any vegetation needs to be a reasonable height.
Findings 23In Tenacity Consulting v Warringah [2004] NSWLEC 140 26 the Court recognised four steps in assessing the impacts of loss of views. The first three steps are relevant here. The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 24With regard to the first step, the view of the Harbour Bridge is iconic. The remaining water views are also highly valued but are partially obscured by built form and other vegetation. In balancing the views against the loss of privacy, restoring the view of the Harbour Bridge should be a higher priority than restoring the views of the harbour to the north and northeast. 25Considering the second step, restoring views from sitting positions in the downstairs room may be unreasonable. The more iconic view in [24], i.e. the Harbour Bridge, could be restored from a standing position. 26The third step of Tenacity Consulting v Warringah [2004] NSWLEC 140 26 notes that when assessing the extent of the impact, this should be done for the whole property, not just for the view that is affected. Although the loss of view from V1 (downstairs) could be regarded as severe, giving the Court jurisdiction to make orders, there is no loss of view from V2 and V3 (upstairs). The upstairs room at the rear of the dwelling is a living area. Therefore, the overall impact of view loss from the dwelling is to be considered when balancing the obstruction of views against the trees' contribution to privacy. 27With regard to the fourth step of Tenacity, which applies to the reasonableness of a development proposal, there is no such development proposal here. Rather, we consider the privacy benefits of the hedge and the reasonableness of the expectation of privacy. The property is within a high-density area, and complete privacy may be an unreasonable expectation. However it is reasonable to use plants to provide some screening to living areas, both indoor and outdoor, especially where there is no other reasonable means of providing such screening. 28We consider the reduction in height of trees T1-T2 and part of T3 would restore an iconic view from V1 without a significant loss of privacy to the respondents' property. 29We also consider that the reduction of trees T4-T9 would restore only partial views of a less iconic value, while leading to a significant loss of privacy to the respondents' property. 30If the tests in s 14A and s14E are satisfied, Court has power under s 14D to make orders over tall or part of a hedge (trees T1-T9) that would remedy, restrain or prevent a severe obstruction of any view from the applicant's dwelling. 31We find it reasonable to make orders that remedy the obstruction of the view of the Harbour Bridge from V1. This would require the reduction in height of trees T1-T2 and part of T3 and their maintenance at a given height. However it is our opinion that pruning trees T4-T7 to remedy a view obstruction would gain lesser benefits for the applicants at the expense of a significant loss of privacy to the respondents. As trees T8 and T9 are not severely obstructing a view and we are not ordering the pruning of trees 4-7, we decline to make any orders for the pruning of these trees, however, if the circumstances change, a fresh application can be made.
Orders 32As a consequence of the foregoing, the orders of the Court are: (1)The application to prune the Waterhousia hedge is dismissed. (2)The application to prune the Viburnum hedge is upheld in part. (3)Within 30 days of the date of these orders, the respondents are to prune trees T1-T2 and any part of T3 that overhangs T2 to a height of 2.0 m. (4)The respondents are to maintain trees T1-T2 and any part of T3 that overhangs T2 at a height no greater than 2.5 m at regular intervals into the future. (5)The exhibits are retained. J Fakes Commissioner of the Court D Galwey 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: 31 May 2011
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