Sinclair v Savdie

The onsite hearing

The hearing commenced with an inspection of the trees in Ms Savdie's east side courtyard. She was absent from the hearing, but was represented by her partner, Mr Jones, who also occupies her dwelling, and her Solicitor, Mr Boscovitz. Ms Jennie Askin, a town planner, also attended as an expert witness for Ms Savdie, and provided a report in which she acknowledged and agreed to be bound by Div 2, Pt 31 of the Uniform Civil Procedure Rules 2005 (UCPR), and the Expert Witness Code of Conduct in Sch 7 to the UCPR. Mr and Mrs Sinclair attended with their Solicitor, Mr O'Brien.
The eight trees form a reasonably dense screen, sufficient to create the impact of a wall. They are planted close together in a row about six or seven metres long, parallel to and within one metre of the common side boundary. This boundary extends from north at the front towards the south.
Tree heights were measured from 'natural ground level' deemed as the level of the paved courtyard, at RL 44.87 (corrected from survey). The trees were growing in a long narrow, restricted planter box, where the soil level is about 550mm above 'natural ground level'. They comprised at least two different Lilly Pilly species or cultivars, with those at the northern end displaying relatively sparser canopy density and less height than those in the middle and southern end. The height of these northern end trees was greater than 5.5 metres, while the average height of the remainder of the hedge approximated 6.25 metres above 'natural ground level'.
The Court next inspected views available from locations on both levels of the applicants' dwelling, then assembled for submissions.
The applicant's residence is located higher up a hill, to the east of the respondent. Both dwellings are relatively deep with a narrow frontage facing the road to the north. The applicants ground floor living areas are designed to capitalise on an arc of district and Sydney Harbour water views primarily towards the north-west.
Three viewing locations on the ground floor were nominated for consideration, but the outlook from upstairs positions was also inspected, to ensure assessment of the totality of views available from the dwelling. From the upstairs northern end study, and the middle (bed) room, views including water, the Harbour Bridge and parts of Sydney CBD were available. These views will be more accessible once the height of privacy screens on all upper level west facing windows, is reduced from 1.5 to 1.2 metres in compliance with a development application modification approved by Woollahra Council (Council). From the main bedroom, upstairs at the southern end, some oversight into the respondent's courtyard is possible.
On the ground floor, extensive district and water views are available from the formal lounge and dining rooms at the northern end. The nominated viewing locations are further south on this level, with V1 from the kitchen/ breakfast bar, V2 from the adjacent raised living area, and V3 from a similarly raised al-fresco dining area at the rear of the dwelling.

Have reasonable efforts been made to reach agreement?

Section 14C(1) requires applicants to provide respondents and the local council with at least 21 days' notice of lodgement of the application, while s 14E(1)(a) requires the applicants make a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated. The respondent admitted that both these requirements had been met, and the evidence provided allows me to confirm this.
The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.
Section 14E(2)(a)(ii) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land.
In Steber v Job [2019] NSWLEC 1308 ('Steber'), Galwey AC considered similar circumstances to those present here. At [34]-[45], he says; "[34] The jurisdictional test at s 14E(2)(a) requires the Court to be satisfied that the trees concerned are severely obstructing sunlight or a view. This Court has, in many cases, construed the grammatical use of the present progressive 'are obstructing' (leaving out the adverb 'severely' for the minute) as a test to be applied on the day of the hearing. In Tooth v McCombie [2011] NSWLEC 1004, the respondents pruned their trees after the application was made and before the hearing. Commissioner Fakes found at [14] that the use of the present tense implies 'at the time of the hearing.' The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing. [35] I concur that the test does not refer to a future, as yet unrealised, view obstruction, but I am no longer convinced that 'are obstructing' implies 'at the time of the hearing', even though I have applied this interpretation myself until now. Given the potential consequences of such a change of mind, it is worth explaining. After all, the annotated version of the Trees Act, available for potential applicants and respondents in tree matters, includes reference to this well-used interpretation of s 14E(2)(a). [36] When assessing sunlight obstruction, the Court does not limit itself to the situation as found 'at the time of the hearing'. Trees might obstruct sunlight from the north only, during winter, but the hearing might take place during summer. Afternoon obstruction of sunlight might not be observed at a morning hearing. Nevertheless, the Court has made orders in these situations. The Court considers that, given the existing situation, a severe obstruction is something that has occurred and will most probably occur again. [37] I now read the words 'are severely obstructing' to be a state that, once reached, might continue to apply or recur. If a tired worker tells her colleague that her neighbour's dogs are disturbing her sleep, she is not saying it is happening at that moment; rather, she is describing an ongoing state of affairs that affects her life at present. It has happened, recently, and is likely to happen again, soon. Dictionaries describe this use of the present progressive tense as 'continuous'. [38] In the case of more than one possible interpretation of an Act's provisions, the Interpretation Act 1987 (NSW) ('the Interpretation Act'), at s 33, favours an interpretation that promotes the Act's underlying purpose (my italics for emphasis): 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. [39] The Interpretation Act then provides at s 34 more detail regarding when, why and how extrinsic material might be used to shed light on the meaning of a provision in an Act. To assist here, I refer to the Attorney General's 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the 2009 Review') and the 2013 Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (High hedge provisions) ('the 2013 Review'). The objective of the Trees Act, quoted in both reviews, is to provide 'a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. [40] Both reviews recognised that the jurisdiction regarding hedges must be strictly limited, reflected by the wording of Part 2A. Neither review noted any requirement for a jurisdictional test to be satisfied on the day of the hearing. Although the wording of Part 2A is carefully chosen to limit the jurisdiction, the underlying purpose of this Part is to provide, where appropriate, means for a land owner to seek and obtain orders to restore access to views or sunlight obstructed by a neighbouring hedge. The 2009 Review takes particular care to recommend that it must be the applicant, not a previous owner of their property, who has lost their view or solar access. However it makes no effort to pinpoint the day on which the obstruction must be found to be severe. [41] Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a). [42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order. [43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case. [44] The Stebers argued that Ms Job has demonstrated through her actions, or lack of action, that she cannot, or is not willing to, prevent her bamboo growing and obstructing their view. I accept this to be the case. Ms Job initially responded to the Stebers' request to restore their view with promises to prune the bamboo. Only minor pruning was done. Ms Job stated that she was unable to undertake the pruning herself, and she had great difficulty finding someone to do it. She submitted that contractors were put off by the heat during summer. This does not explain the two years it appears to have taken for adequate pruning to finally be done. [45] Having considered photographs, observations, the history of the matter and the submissions heard, I find Ms Job's hedge has caused a severe obstruction of the Stebers' view and that this is likely to be an ongoing state. I am satisfied that the trees, in this case bamboo, are severely obstructing the view from the Stebers' dwelling."
Applying the following rationaIe based on Steber, I am satisfied that the Lilly Pilly hedge is severely obstructing the view from the applicants' dwelling, and thus s 14E(2)(a)(ii) is engaged.
The Sinclair's house was constructed by 'developers' over a two-year period in 2016-2017. Photos provided show large piles of soil close to the common boundary, and thus Ms Savdie's eastern courtyard. No doubt there was considerable noise, dust, and perhaps overlooking by builders over this protracted period. It is unsurprising that the respondent would be aggrieved by the scale of this development looming over them from higher up the hill and would try to mitigate the impact by growing a taller hedge.
Whether the Sinclair's inherited residual enmity related to the development is unknown, but resentment is likely to have initiated or increased after Mr Sinclair unsuccessfully applied to Council in mid-2020 seeking a reduction in the height of upper floor window screening from 1500mm to 900mm tall, and was successful with his subsequent modified application of April 2021, in gaining approval to reduce it to a height of 1200mm. The respondent submitted an objection in response to this DA modification application.
The respondent also emphasised alleged non-compliance by the applicants with a DA condition ostensibly requiring them to install and maintain screening on the western side of their northern formal lounge/dining and terrace area, to mitigate the impact of possible oversight into the respondent's courtyard. Real estate advertising material submitted showed photos with the screens in situ, and vigorous representations were made that these screens should be re-instated.
Consent condition C.1.b from the original approved DA for the dwelling, which is reproduced in the applicants' recently approved DA modification, includes; "The western side of this modified terrace must be fitted with fixed louvres/screens to a minimum height of 1.5 metres above finished floor level. The louvres/screens must restrict sightlines in a forward direction only and not back over the property immediately joining to the west" (the respondent's property).
My interpretation of this condition is that a mistake has been made in the drafting, such that screening would not result in a restriction of sightlines towards the respondent's courtyard and dwelling. Mr O'Brien was of the same opinion, describing the condition as defective, and inconsistent on its own face such that it is not possible to abide by it. To the contrary, Mr Boscovitz submitted that the condition was valid and legally enforceable, and Ms Askin confirmed this interpretation in her verbal evidence.
It is not clear when questions around the text and enforceability of the DA consent condition C.1.b came to the respondent's attention. The applicants submitted that the respondent, and particularly Mr Jones, a practicing architect, had the opportunity to address this issue with Council in response to the two DA modification applications. Notwithstanding this, it appeared that issues around this consent condition did not surface prior to this application under the Trees Act, and before that, Ms Savdie had a reasonable expectation that the applicants should install privacy screening to their northern ground floor windows in compliance with this condition.
Regardless of the alleged drafting error and legal considerations, the fact that the condition was imposed, suggests that Council determined that such screening was necessary to adequately protect the respondent's privacy, and the applicants apparent failure to respect and respond to this is likely to have exacerbated the dispute. Obviously, water views have a major impact on property values, but the applicants' hunger to maximise their views appears inconsiderate of the respondent's privacy concerns, and well-being.
In this context, it is unsurprising that the response from the respondent and Mr Jones to the applicants' June 2021 pruning request was non-co-operation and refusal.
Though Mr Sinclair claimed they were much shorter, photos showing the trees during the dwelling's construction, and subsequent advertising material appear to indicate that the hedge height ranged from about 6 - 6.25 metres when the applicants occupied their property. It grew over the subsequent three years to a height of about 8 metres. This was uncontested and is supported by photographic evidence.
The Interpretation Act 1987 permits reference to a limited range of extrinsic material to assist in interpreting the Trees Act. In this regard, I refer to the NSW Government, Justice & Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), (November 2009) ('the Review').
On p 39, the Review describes the scope of the Trees Act. In part, this says; It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access (or in this case views) which had not existed at the time of purchase.
It is relevant to note that this Court, under the jurisdiction of the Trees Act, has consistently determined that an applicant is not entitled to a view which was not available to him when he purchased the property: see Fyday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150.
As a consequence, any orders made shall not reduce the hedge to a height lower than 6 metres above 'natural ground level'.
Given the relatively close proximity of the hedge to the applicants' nominated prioritised viewing locations, and because it effectively forms a wall, at the height of about 8 metres, I am satisfied that the obstruction of the desired water and land/water interface views as a result of the hedge, from both a sitting and standing position, would be severe and most likely devastating.
The applicants submitted that the respondent's 'cynical' pruning of the hedge, eight days prior to the hearing, implies tacit acknowledgment that the hedge was severely obstructing the view, and was undertaken to circumvent orders being made to remedy the situation. This is indeed probable and, given the intensity of the dispute, should no orders be made, there is no imperative, nor is it likely, for the respondent to co-operate with further requests for pruning. Given the proximity of the wall-like hedge to the applicants' dwelling and the relatively rapid growth rate of these trees, it would not take long before they would again severely obstruct the view.
As noted at [41] of Steber; "Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a)."
Both parties provided interpretations of the various available views and viewing points through the lens of the planning principle on view sharing published in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity'). The solicitors disputed whether photographic evidence manipulated the views available from the three designated viewing locations, and whether furniture orientation was arranged to capitalise on these views, but this is not determinative in this situation.
The Court often gains assistance from Tenacity when assessing view sharing in cases brought under the Trees Act, but there is no onus on the Court to use this guidance. Given the close similarity of the key elements of this case to those in Steber, this is the basis for deeming the obstruction severe, rather than through an analysis using Tenacity.
Having said this, I am satisfied that views featuring Sydney Harbour, and land-water interface are highly valued, in keeping with the first step of Tenacity, regardless of whether they include 'icons'. I am also satisfied that the second step presents no impediment to a determination of severe obstruction, even though the applicants' desired views are oriented diagonally across the respondent's property, as desired views from all near neighbouring properties would share the same orientation. Finally, I am satisfied that V1 and V2, from the informal living area and integrated kitchen, should be deemed the most significant viewing locations, in accordance with Tenacity's third step, notwithstanding that very good views are available from the front formal lounge and dining room and the upstairs study.
As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states: (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.
In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required: 1. The hedge is located in the respondent's property parallel to and close to the common boundary, and the applicant's adjacent residence. 2. The trees were planted prior to occupation by the applicant. 3. The trees have grown to about eight metres tall, progressively obstructing the view since the applicants occupied their land. 4. Though the trees are likely protected by Council's Tree Management controls, permission is unlikely to be required to prune the hedge to the extent required to remedy the severe view obstruction. 5. (e.1) The applicants are required to maintain screening on their upper level windows to a height of 1200mm, reduced from 1500mm through approval of an April 2021 DA modification application. (e.2) The respondent claimed that screening was also required on windows in the front ground floor dining area and terrace in accordance with consent condition C.1.b, but this condition contains a fault in its drafting, which appears to render it unenforceable. In any case, this is not an element for the Court to rectify, or not. Rather, this responsibility sits with Council. (e.3) The respondent also submitted that the applicants' dwelling does not conform with a local DCP objective, that the orientation of open space and openings are towards the front and rear, rather than the side. The applicants did not design or construct their dwelling, and all required certification appears to have been approved by Council, notwithstanding any non-compliance with the DCP. Alternatively, Mr Sinclair, in his affidavit, noted various DCP objectives relating to view sharing, such as Control C9 in Part B3.5.3 which states that "Planting must not be used to block views". While such DCP considerations are relevant, they are not determinative in this case. 1. The trees do not have any historical, cultural, social or scientific value that is worthy of consideration. 2. The hedge is likely to make a minor contribution to biodiversity, as a potential source of food and perhaps habitat for native fauna. 3. The trees provide a minor contribution to the natural landscape and scenic value of the land on which they are situated or the locality concerned. 4. The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity. (k) This genus can normally be pruned relatively often to maintain height without unduly affecting their health or function. Such pruning may result in more regrowth within the canopy, and thus enhance the hedge's utility for the respondent. Given the significance and utility of the hedge for Ms Savdie, and because the trees are mature but have restricted root range in an enclosed planter box, a watering and fertilisation program should be implemented, or maintained, if already in place. (l) The hedge's most important function is providing privacy for the respondent. As the applicants' dwelling is higher up a hill and two storey's high, from the majority of the Sinclair's west facing doors and windows, there would be intrusive oversight into the respondent's house and courtyard, if the hedge was removed or its height excessively reduced. (m) Though there are other trees in the path of the applicants' desired view, the closest are much more distant than this hedge in properties across the road, and the most obstructive of these is deciduous, thus allowing filtered views through the canopy during late autumn and winter. In the absence of the hedge, these other trees would frame water views, rather than block them. (p) The hedge is evergreen. (q, r) The obstructed views include district and bushland, Sydney Harbour, land-water interface, and associated features such as wharfs and headlands. When the hedge was about 8 metres high these views would have been severely blocked from prioritised viewing locations, V1 and V2 in the living and kitchen areas. Very good water views are available from other areas of the house, unaffected by the hedge.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)