Simon v Goltsman

Simon v Goltsman - [2021] NSWLEC 1069 - NSWLEC 2020 case summary — Zoe

[3]

The hearing

Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties' submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.
No experts were required to give evidence at the hearing. The Court had the following reports filed by the parties:

Shadow diagrams by Deneb Design, 27/06/2019 (Applicant).
Arboricultural report by Ross Jackson, of Jacksons Nature Works, 28/09/2020 ('the Jackson report') (Exhibit 2, Respondents).
Planning report by Paro Consulting, September 2020 ('the Paro report') (Exhibit 3, Respondents).

The applicant's shadow diagrams purport to show the impact of the hedge in diagrams that are the 'View From Sun (VFS)'. The diagrams are not presented within the format of an expert witness report, nor is there any declaration from the designer who prepared the diagrams acknowledging the Expert Witness Code of Conduct in the Uniform Civil Procedure Rules 2005 ('the UCPR').
Mr Jackson's report includes a statement that he agrees to be bound by the UCPR's Expert Witness Code of Conduct, but his report does not comply with the Code of Conduct, as it does not include all required contents.
The Paro report does not meet the requirements of the Expert Witness Code of Conduct. The author is not named; their qualifications are not provided. There is no acknowledgement of the Expert Witness Code of Conduct. (After the hearing, Mr Boskovitz sent through a letter from the report's author.) It is not clear if the author visited the site.
These may seem as trivial complaints from the bench in a Class 2 tree dispute, a jurisdiction that was shaped to enable self-representation with minimal requirement for expert evidence. Indeed, the Court frequently provides a flexible approach to evidence in tree disputes. However, where a party engages legal representation, and obtains expert reports from planners and arboriculturists who assert their experience in the Court, the bar might be raised.

[7]

The trees severely obstruct sunlight to the applicant's dwelling

For applications involving sunlight obstruction, the Court must be satisfied that the trees are severely obstructing sunlight to a window of the applicant's dwelling. Pursuant to s 3(1) of the Trees Act, 'window' includes a skylight.
The respondents' property faces approximately northwest, to their street frontage. The trees grow along their rear boundary. The applicant has no street frontage, but the common boundary shared with the respondents might be regarded as their side boundary. The hedge (trees 1-8) extends beyond the north-eastern end of the applicant's dwelling, such that trees in the hedge are not only to the northwest of windows on this side of the dwelling, they are also directly north of those windows.
The Paro report states on page 24: "The DCP stipulates firstly that the control applies to "north facing windows". The Woollahra DCP defines "north facing windows" as "the orientation range within 20° west and 30° east of true solar north". It appears the side west facing windows face 60° west of true solar north, which fall well outside the definition of north facing. The rear north facing windows are 30° east of true solar north and therefore are defined as "north facing windows". Therefore, the north facing habitable room bedroom to the upper level receives 3 hours of sunlight between 9am to 3pm on 21 June over a portion of its surface. The side elevation west facing ground and first floor level windows are not afforded any sunlight protection under the DCP."
The longest side of the applicant's dwelling, where most of the dwelling's windows are situated, faces approximately northwest, parallel with, and towards the common boundary. As a result of the above assessment within the Paro report, its author has deemed all these to be west-facing windows. Therefore, according to the author, the only north-facing windows are those on the northeast 'end' of the applicant's dwelling, where the shorter dimension results in fewer windows. The report's author then assesses the shading on a 'north-facing' window, to conclude that it receives the amount of sunlight required by the Woollahra Development Control Plan 2015 ('the DCP'). Mr Boskovitz repeated these findings during the hearing, arguing that the Court cannot find a severe obstruction of the applicant's 'west-facing windows'.
I do not accept this reasoning. Firstly, the Trees Act only requires that the Court be satisfied that the trees cause a severe obstruction of sunlight to a window in the applicant's dwelling. Severity is subjective. While a Development Control Plan might provide some useful guidance when assessing the severity of obstruction, it cannot be solely relied upon. The DCP guidelines were developed for a specific purpose. The Trees Act does not refer to those guidelines, but relies upon the Court to consider all the relevant matters that might contribute to the obstruction of sunlight, and its severity.
Secondly, the orientation of the applicant's dwelling appears 35-40° east of north (and therefore 50-55° west of north), and therefore has no north-facing windows according to the reasoning in the Paro report. Yet most of the winter sunlight obviously enters the applicant's dwelling through the windows along its north-western side. It would be unreasonable to preclude consideration of this sunlight in determining this application.
Mr Boskovitz likened the situation to that found in Drewett v Best [2010] NSWLEC 1305 at [17], but those windows were clearly described as facing southwest.
The applicant's windows are W1-W3 on the ground floor, being full-height windows facing the common boundary, and W4-W9, being skylights into the ceiling of the ground floor along this north-western side. This section of the dwelling, with all nine windows, is approximately 1.55 metres from the common boundary. Photographs show trees 1-8 growing well above the boundary fence, shading these windows. Foliage of the trees extends across the boundary. Despite the findings of the Paro report, and Mr Boskovitz' submissions to the contrary, aerial photographs clearly show the trees in the hedge to be directly north of these nine windows. Mr Boskovitz argued that the shadow diagrams could not be relied upon, because they include the shadowing of trees which are now known to be on other land, not the respondents'.
The applicant's photographs alone are enough to satisfy me that trees in the hedge obstruct sunlight to these nine windows, and that the obstruction is severe. The windows are fully or extensively shaded by the trees not only in mid-winter, but for several months of the year.
On the basis of the above, I find that all trees in the hedge contribute to a severe obstruction of the applicant's windows.

[8]

The trees severely obstruct a view from the applicant's dwelling

The claimed view loss within the application is from the applicant's first-floor master bedroom and its balcony, toward Sydney Harbour to the north and northwest. Ms Simon claimed that she had partial water views from here when she first occupied her dwelling. She included in her application a photograph (copied below) from the rooftop above, showing part of that water view still available from the higher viewpoint.
The Goltsmans' principal rebuttal of Ms Simon's view loss application focussed on a planning issue concerning a condition of consent for her dwelling, so I will consider this first. Ms Goltsman's affidavit (Exhibit 1) included considerable material showing elements of the history of development consents for both the applicant's and the respondents' properties. Relevant here is the material showing a planter box and screen along the applicant's first-floor balcony. Mr Boskovitz argued that Ms Simon removed the planter box and screen contrary to the conditions of consent that applied to her dwelling at the time of the items' removal, and still apply. Were the planter box and screen still in place, he opined, Ms Simon would not have any view of the harbour from the bedroom and balcony.
The planter box and screen were required for privacy, preventing or limiting potential overlooking issues from the applicant's dwelling to the respondents'. Mr Boskovitz also stressed the increased need for the hedge's screening since those items were removed.
Ms Simon provided some explanation for removal of the planter box - its waterproofing failed and was removed. The screen was removed because it was climbable.
If the Goltsmans wish to press their complaint regarding Ms Simon's missing planter box and screen, that is a matter for them to take to Woollahra Municipal Council. It is not something I can address here. However, if I take their submissions as correct, I must consider whether the view obstruction caused by the hedge would be severe were the planter box and screen still in place. The photograph below is copied from the Paro report, where it is stated that the photograph is taken from a standing position in the applicant's master bedroom.
The author of the Paro report has added notation and red lines to the photograph indicating: the height of the screen required by the consent condition, and subsequently removed; and the height of a privacy screen that would be required by current planning controls, should the applicant be obtaining consent for the balcony now. I have highlighted the former (the line indicating the height of the removed screen) with a yellow dashed line.
Notation on the right side of the above photograph points to a small area highlighted in orange, with the words: "Glimpses of views obstructed by three trees", apparently referring to the water view seen in Ms Simon's recent photograph from the roof above.
The conclusion reached by the author of the Paro report, and reasserted by Mr Boskovitz, is that the impact of the cypress hedge on the view, above the removed screen (the yellow dashed line), is not significant. I do not accept this. Without the trees, and with the screen in place, the view in its entirety would include part of the harbour, the suburban landscape of rooftops and trees, and the sky above. While the water view might be the most highly valued part of a view, as per the hierarchy of view values in the view-sharing principle found in Tenacity Consulting v Waringah [2004] NSWLEC 140 ('Tenacity'), here it would be a small part of an overall view. The photograph above shows that the trees obstruct the entirety of that view (water, landscape and sky) visible above the removed screen from the bedroom.
The photograph below, also copied from the Paro report, shows the view from a sitting position in the bedroom, again with my addition of a yellow dashed line to highlight the red line in the Paro report indicating the top of the removed screen.
From a sitting position in the bedroom, the hedge obstructs, above the removed screen, all but a small portion of the sky view.
To my mind, these two photographs in the Paro report demonstrate that the removed screen would have obstructed only a small part of the outlook from the applicant's bedroom, leaving a significant outlook that included the suburban landscape, the harbour and the sky. The photographs further demonstrate that this pleasant outlook is obstructed by the cypress hedge - entirely from a standing position, and almost entirely from a sitting position. Using the language of Tenacity, the view loss is more than negligible, minor or moderate - it is severe. I am satisfied that trees in the respondents' hedge are severely obstructing a view from the applicant's dwelling.

[11]

Previous height of the trees

The jurisdiction of Part 2A of the Trees Act was never intended to provide access to sunlight or a view not previously available to the applicant - see McDougall v Philip [2011] NSWLEC 1280 at [18]-[25]. The hedge was present when Ms Simon purchased her property in December 2014 and when she renovated her dwelling. A photograph included in the Paro report, and copied below, is apparently from 2014 promotional material for the sale of the property then about to be purchased by Ms Simon.
The screen on the first-floor balcony can be seen on the right in the above photograph. In her application Ms Simon wrote that the trees were approximately 3 metres tall when she purchased her property. If I rely on the photo above, it is more likely that the trees were 4-5 metres tall in 2014. The respondents submitted that the trees were planted in 2003, and that they are now 9.2 metres tall. In the Paro report, it is suggested that they were 6 metres tall prior to the applicant's purchase, but this is not supported by evidence. Based on the photograph above, I find it most likely that the trees were no taller than 5 metres in December 2014. At that time, a planter box prevented access to the edge of the balcony closest to the boundary, and a screen reaching 1.5 metres above floor level limited the view. Nevertheless, as can be seen in the photographs further above, an open outlook of sky has been replaced by a dense screen of foliage that prevents any outlook. It is this view that I find is severely obstructed, and it is a view that was available to the applicant.
It is also clear, from the photographs above, that the amount of sunlight reaching the applicant's windows must be severely diminished for many months of the year when compared with the same months after she first purchased, as a result of the trees' growth. While the windows in her application to the Court might not directly face north, they are the windows that allow most of the northern sunlight into her dwelling from autumn through to spring. When shorter, the trees might have blocked some of that light during winter, but the obstruction then was unlikely to be severe, as it is now.

[22]

Parts of the dwelling affected

Trees in the hedge obstruct the view from Ms Simon's first-floor master bedroom. Steps 2 and 3 of Tenacity's view-sharing principle address this issue. "27 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. 28 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."
Ms Simon's property has no street frontage, but the common boundary along which the trees grow might be regarded as her side boundary. It is the Goltsmans' rear boundary. The trees are in the direction of Ms Simon's principal view. To my mind, this element of Tenacity's view-sharing principle is more relevant to buildings, less so to hedges. Buildings have a purpose, and the Tenacity principle's aim is to minimise view obstruction while achieving the building's purpose. The main purpose of hedges such as this, on the other hand, is to create a screen. While this can be important for privacy, that issue is dealt with elsewhere in this judgment. If the common boundary is Ms Simon's side boundary, I do not consider that significant in making this decision.
Photographs show the view to be severely obstructed from both standing and sitting positions.
According to Tenacity's third step, "…the impact on views from living areas is more significant than from bedrooms or service areas." A view lost from Ms Simon's master bedroom might be less significant than one lost from her lounge or dining room, and more significant that one lost from her laundry. I note the first two sentences of this third step: "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." Taking the whole of Ms Simon's property into consideration, the obstructed view might be the best view available to her. She has no such view from her ground-floor living areas.

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Parties

Cases Cited (4)

Cited By (1)