Findings - views
29In assessing the severity of a loss of a view, the Court has often had regard to the planning principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. This principle establishes a series of steps in assessing the impact of a development on views from a potentially affected property. The first three of the four assessment steps are relevant to Part 2A view applications.
30The nature of the views to be affected (step 1) includes ocean views and views of the coastal landscape of Coolangatta and Tweeds Heads; water views are generally more highly valued than land views.
31Step 2 considers the part of the property from where the views are obtained. Paragraph [27] in Tenacity states in part:
...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.
32Step 3 considers the extent of the impact. This should be done for the whole of the property and not just for the view that is affected. Generally, views from living areas and kitchens are considered more valued than views from bedrooms. View loss can be considered quantitatively and qualitatively. It is usually more useful to consider the impact qualitatively as negligible, minor, moderate, severe or devastating.
33Apart from the principle in Tenacity, the Court has also considered the interpretation of the words 'a view'. This is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At [26] Moore SC and Hewett AC state:
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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
34Therefore in applying these cases to the matter before me, I am not satisfied that there is any severe obstruction of 'a view' from the upstairs viewing locations. As stated above, the available views are wide and panoramic and while there is some obstruction of the views of Coolangatta and Tweed Heads from some windows, the obstruction of that portion is minor to moderate and certainly not severe.
35In regards to the downstairs living areas, while the view to the north-east is severely obstructed by the respondents' trees, and therefore s 14E(2)(a)(ii) could be considered satisfied, I am not satisfied, after considering s 14E(2)(b), that any orders should be made for any intervention with the trees. My reasoning is as follows.
36Section 14E(2)(b) requires the Court to balance the interests of the applicants in removing, preventing or remedying an obstruction against the interests of the trees and the tree owner. This requires consideration of relevant discretionary matters in s 14F of the Act.
37The relevant matters in this case are:
- While the remaining trees are located on adjoining land, they are not growing on the common boundary but on the rear boundary of the respondents' property. Although the Act makes no distinction as to where the trees are located in terms of its jurisdiction, the relative location is important when the reasonable balancing of interests are considered. In this case, the respondents' eastern boundary adjoins the rear gardens of several other dwellings and the trees are some distance from the applicants' dwelling (s 14F(a)).
- The trees were planted in 2002 after the respondents built their dwelling in 1999 and after the applicants built theirs in 2000. The trees have grown to their current height in that time S 14F(b)(c)).
- The respondents planted the trees in order to screen their pool and dwelling from those dwellings upslope (including the applicants') and those to the east. The palms along the eastern boundary screen views to and from the respondents' main bedroom and bathroom, downstairs living areas and the pool deck (s 14F(h)(l)).
- In regards to pruning or reduction, the Bangalow Palms as single trunked palms cannot be reduced as to do so would kill them however this species will grow above the canopy of the Golden Cane palms and eventually above the applicants' view line. The Golden Cane Palms, as a species of clumping palm, can cope with the removal of individual canes without causing any damage to the whole plant (s 14Fk)(s)).
- The respondents have taken action to remove the palms they considered were causing most concern to the applicants and in doing so have lost a degree of privacy and amenity that those plants afforded their property (s 14F(n)).
- Most significantly, (s 14F(q)), as stated several times, the views to the north of the ocean and coastal landscape are unaffected and available from all of the nominated viewing locations. The north-eastern views are a relatively narrow portion of the whole view.