Solicitors:
Respondent: Cohen & Krass
File Number(s): 175678 of 2016
[2]
Judgment
COMMISSIONER: The applicant, Mr Taylor, purchased his apartment in 2013; he contends that since then, trees on the respondent's property have grown and now severely obstruct views from his dwelling.
Mr Taylor has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of four trees growing at the rear of the respondent's property.
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?
There are five X Cupressocyparis leylandii (Leyland Cypress) [cultivar uncertain] planted along the rear boundary of the respondent's property. According to the respondent's sworn affidavit (Exhibit 1), the trees were planted in 1999 in order to provide a privacy screen between the applicant's unit block and the respondent's backyard.
The trees are linearly arranged and are in excess of 2.5m tall and are thus trees to which Part 2A applies. The tree closest to Mr Taylor's unit is the southernmost tree - identified in the application claim form as Tree 1.
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 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 application claim form (Exhibit A) identifies one viewing point - V1, Mr Taylor's home office. Further material submitted by Mr Taylor (Exhibit B) includes V2 - the view from the kitchen. Both windows face northeast. Undated photographs/figures 14-16 in Exhibit B are stated to show views from the windows taken in 2013 and 2016. Both exhibits include photographs and submissions relating to other units in the apartment block. None of these are relevant to Mr Taylor's application.
The photographs indicate that only the southern portion of the canopy of Tree 1 affects views from Mr Taylor's unit. There appears to have been approximately 500mm of lateral growth of Tree 1 since Mr Taylor purchased his unit in 2013.
In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature and extent of the view, the second the location from which the view is seen, including views available from the whole of the property, and the third considers the use of the rooms from which the views may be affected. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.
The first step considers the nature of the view affected. In [26] of Tenacity it is considered that water and iconic views are valued more highly than views without water and whole views are valued more highly than partial views. Figure 14, in Exhibit B - 2013 view from V1, shows a portion of the Sydney CBD skyline on the horizon. The view is a partial view to the north-east through the southernmost panel of the two panel window. It is framed by Tree 1 and by large street trees growing in the near to mid distance. There is no evidence that the Harbour Bridge was visible from this position in 2013. Figure 15 shows the same view in 2016 although from a slightly different angle (slightly further to the north). As observed during the on-site hearing, the view of the skyline is more obstructed and only available from a more restricted viewing point in that room; however there are uninterrupted district views to the east and south-east. The views from V2 - the kitchen, being further away from Tree 1 are largely unaltered and include a distant but clear view of the Harbour Bridge, considered in Tenacity to be a view of an iconic structure, and parts of the city skyline.
The second step considers from what part of the property the views are obtained. In this case, the views are across a rear boundary, from sitting and standing positions for V1 and standing from V2. The standing views of the city skyline are still visible from parts of the home office and if the position of the desk was altered, some sitting views may be available, although it is not clear from Figure 14 in Exhibit B whether the city skyline could be seen from a sitting position as the position of the desk is not shown.
The third step is to assess the level of impact. This should be done across the whole of the property taking into consideration the use of the rooms from which the views are impacted. This step considers the quantitative and qualitative impacts, with the qualitative impact usually more applicable. Paragraph [28] in Tenacity includes a scale of impact from negligible, to minor, moderate, severe, to devastating. The impact on views from living areas, including kitchens, is considered more significant than those from bedrooms or service areas. In Mr Taylor's case, he asserts that as he spends 40-50 hours per week in his home office, it constitutes a living area. He also asserts that the extent of the blockage makes it difficult for him to work comfortably for long periods of time and that given the "large, ominous presence" outside his window he feels anxious and uncomfortable.
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 respondent's counsel, Ms Hammond, submits that while pruning the 500mm or so of foliage that has grown since the applicant purchased his unit would probably not cause any damage to the tree, the respondent's position is that when the principles in Tenacity are applied there is no severe obstruction of a view from his unit and the matter should be dismissed.
[3]
Findings
If I were to put Mr Taylor's case at its highest and concentrate on the loss of the constrained view of the city skyline from parts of his home office, as a matter of discretion I would not make the orders he seeks, that is, the removal of all trees. In essence, this would create a view that was not available to the applicant when he moved in. This, in my opinion, is not why the Act was amended in August 2010. The amendment gave the Land & Environment Court a strictly limited new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling or views from a dwelling.
As I discussed in McDougall v Philip [2011] NSWLEC 1280 at [21]-[24], pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act.
Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006" undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views.
a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.
b) That this jurisdiction be strictly limited, with applications restricted to hedges which:
are both high and give the effect of a solid barrier, and
are causing severe impact for a dwelling, and
have caused the impact to the applicant (not to the previous occupant), and
are located between neighbours on adjoining land.
c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.
d) That the new procedure be drafted so as not to create a right to light or views.
e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title.
f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.
The discussion relating to Recommendation 9 [page 35] states in part that:
The Court would only have the power to hear matters regarding: ….cases where the applicant themselves has lost the light or view. 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 a view] which had not existed at the time of the purchase.
The amended Act incorporates all of the recommendations made in the review.
However, having had the benefit of the site inspection, and in applying the relevant principles and concepts from Tenacity and Haindl I am not satisfied that the obstruction of views from V1 are severe. While certainly less of the skyline can be seen, it appears from Figure 14B to have comprised only about 17-20% of the view along the horizon. Although tree 1 has grown, it appears that so too have the street trees. The expansive district views to the east and southeast remain unaffected. At most the impact on the view of the CBD is moderate and when the whole of the view from that window (V1) is considered, the growth of the tree has had a minor impact on the view. The applicant accepts that the views from the kitchen are unaffected.
While I agree that pruning the southern side of Tree 1 by up to 600mm or so would be unlikely to have any impact on its health or on the privacy of the respondent's property, having found that s 14E(2)(a)(ii) is not satisfied, they are orders I cannot make.
However, should the circumstances change, a further application can be made - see Deville & anor v Frith & anor [2014] NSWLEC 1002 and Jayawardena v Salvia & anor [2015] NSWLEC 1191.
As a consequence the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
[4]
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Decision last updated: 28 October 2016