TREES [NEIGHBOURS] : Hedge - Obstruction of sunlight and views
Land to which Act applies
trees to which Part 2A applies
Source
Original judgment source is linked above.
Catchwords
TREES [NEIGHBOURS] : Hedge - Obstruction of sunlight and viewsLand to which Act appliestrees to which Part 2A applies
Judgment (5 paragraphs)
[1]
t is compatible.
5. While this is an unusual situation, I am satisfied on the basis of the particular circumstances of allotment sizes, configuration and the relationship between the parties' lots, that the land on which the trees are growing has the character of "rural residential" and thus can be considered as land to which the Trees Act applies.
[2]
Jurisdiction - Part 2A
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)(a) 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 reach a height of at least 2.5m above ground level?
Sorensen v Van Kleef [2017] NSWLEC 1667 | Case summary | Zoe
Section 14E(1)(a) requires that the applicant has tried to reach an agreement with the respondent.
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.
Similarly, there must also be a dwelling on an applicant's land from which the view can be seen and windows which can receive sunlight in order to determine the starting point for any consideration of loss of sunlight or views as a consequence of trees to which part 2A applies (see Mayes v Keene [2016] NSWLEC 1604 and De Lyall & anor v Dann & anor [2017] NSWLEC 1190).
[3]
The hearing
The hearing was conducted on site and commenced with an inspection of the trees the subject of the application and then moved to the applicant's property in order to assess the impact on views.
According to the respondent's evidence (Exhibit 1), he purchased the property in 2008 and started planting trees. During 2008-2009, the respondent planted the trees near the common boundary with supplementary plantings in 2010. These include the trees the subject of the application. Over the years he has continued to plant trees and to interplant the trees with shrubs. The trees along the western boundary, which are also part of the application, were planted during 2013-2014.
The respondent stated that the primary purpose of the planting is to encourage wildlife and to establish a wildlife corridor that links nearby remnant vegetation. Apart from encouraging biodiversity, the respondent values the trees as a windbreak, acoustic barrier and privacy screen as he contends that the location of the applicants' dwelling is too close to the common boundary.
The trees comprise a diverse mixture of species designed to attract a range of wildlife. The taller trees are staggered rows of Eucalyptus and Acacia species planted at about 3 to 4 m centres. Lower growing shrubs have been inter-planted. A large portion of the respondent's sloping property has been planted with trees.
The applicant purchased his property in January 2010. The construction of the dwelling commenced in June 2015 and was completed in February 2016. The applicant contends that when he purchased the land he had unobstructed views to the north of the nearby dairy farm - including dairy shed, paddocks and cows. Photographs taken in August 2013 and included in the application claim form show the roof of the respondent's dwelling and a number of the trees the subject of the application (at least one of which is in excess of 3m tall). The diary shed can be seen in the distance. There are no photographs to illustrate the view available from the applicant's dwelling during or immediately after its construction.
[4]
Findings
In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants self-seeded or are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed.
'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge".
Given the species diversity, spacing between trees and period over which the trees have been planted, I am not satisfied to the extent required by s 14A(1)(a) that the trees the subject of the application are trees to which Part 2A applies. However, if I am wrong in this finding, I have considered the impact of the trees on the views available from the applicant's dwelling.
Pursuant to s 14E(1) I am satisfied that the applicant has made a reasonable effort to reach an agreement with the respondent, however, as there has been no success in reaching a mutually agreeable arrangement, I must determine the matter in accordance with the relevant provisions of the Act.
The applicant accepts that the trees do not currently obstruct sunlight to any windows of the dwelling but is concerned that this may happen in the future. As the Trees Act requires the trees to be severely obstructing sunlight at/close to the time of the hearing, this element of the application is dismissed.
The applicant has nominated four viewing locations from his dwelling - all are from various points along the north-northwest facing deck. V1 at the western end of the dwelling adjoins the main bedroom, V2 and V3 are from the central part of the deck between the open-plan living/kitchen/dining area and the swimming pool, and V4 is from the deck adjoining another bedroom at the eastern end of the dwelling. The central part of the deck includes an outdoor dining table.
The views in contention are views to the north of the nearby dairy farm and milking shed and to the north-northwest of part of a large farm dam/lagoon at the base of the slope on which the parties' properties sit.
In considering Part 2A applications regarding obstruction of views, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. This adopts a qualitative approach. 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.
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.
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 view in question would be described as a very pleasant district view of a part rural/ part natural landscape. It includes distant hills, presumed to be part of the Great Dividing Range, river flats, water bodies and agricultural activities. While the view to the north is technically across a side boundary, it would be expected that any dwelling on this lot would be orientated generally to the north.
Moving between all viewing locations, and from standing at each of the nominated spots along the deck, it was possible to see the distant paddocks, milking shed and cows to the north. The distant hills beyond were also visible. While part of the farm dam/lagoon is obstructed from the eastern-most viewing locations, the majority of the dam is visible from V1 and V2. The view from all viewing locations includes the river flats and creek line vegetation and the distant range. The trees the subject of the application punctuate the views to the dairy farm and the result is a partial - minor to moderate, not severe, obstruction. I note that by 2015 when the applicant's dwelling was under construction, the respondent's trees were likely to have punctuated the view although I accept the trees would naturally have been smaller.
Therefore, even though I am not satisfied that the trees are trees to which Part 2A applies, I also find that the trees are not severely obstructing views from the applicant's dwelling. Therefore the jurisdictional test in s 14E(2)(a)(ii) is similarly not met and there is no necessity to consider the balancing of interests in s 14E(2)(b).
[5]
Orders
As a consequence , the only order that can be made is:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 23 November 2017