Whitty v Shearman & Anor

Jurisdiction

1. Section 14B, Part 2A of the Trees 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, however the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
2. 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. This sequence is discussed in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122.
3. The first test, in s 14A(1) 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 rise to a height of at least 2.5m above ground level?
4. I am satisfied on the evidence before me that the eleven nominated Leyland Cypress are trees to which Part 2A applies, although I note from the tree schedule in the application claim form that two trees, T20 and T21 were planted in a separate, later event; the majority being planted in an earlier event (see Coleman & anor v Leddy & anor [2013] NSWLEC 1094). All trees are in excess of 2.5m. During the hearing, the Leyland Cypress trees were measured to the top of the foliage at just over 4m above the top of the wall; the trees had grown just over 500mm since being pruned in November 2016 (as indicated by the height of the stubs above the top of the wall). Therefore, while there may be two hedges, they are all trees to which Part 2A applies.
5. Although the Banksia is one of many plants along the common boundary, it is an individual specimen; the applicant's schedule indicates as much. As such it is not a tree to which Part 2A applies. Therefore this tree is beyond the Court's jurisdiction.
6. Of the remaining 12 trees, the only ones to which my attention was drawn were trees T1-T3 - three Blueberry Ash at the north-western end of the row of trees along the common boundary. I am satisfied that the spacing, arrangement, height and species choice are sufficient to satisfy s 14A(1).
7. I am satisfied to the extent required by s 14E(1) that applicant has made a reasonable attempt to reach agreement with the respondents, however, as an agreement acceptable to both parties could not be reached, I must determine the matter.
8. 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."
9. 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 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.

Sunlight

1. The applicant has nominated four windows to which he submits sunlight is obstructed by the respondents' trees. All windows/glass doors face northeast; W1 is on the upper level, windows W2-W4 are on the lower level. W1 is a window in an open-plan kitchen/dining area, W2 is a bedroom window, W3 is a glass door to a hallway, and W4 is a glass door to the laundry. W3 and W4 are set back from the external wall of the dwelling. The applicant does not press W3 and W4.
2. The application claim form contains professionally prepared shadow diagrams (and a report - The Walls Report) showing three scenarios: shadows from built structures (both parties' properties) and no vegetation; built structures and the Banksia but no hedge; and built structures, Banksia and hedge. The shadow diagrams only identify W1 and W2 [it would appear from the diagrams that W3 and W4 are shaded by structures at most times of the day].
3. The shadow diagrams showing the buildings and the Banksia indicate that W1 and W2 are generally in full sun from 9.00am until 12 noon, with W1 receiving good sunlight until about 2.00 pm when the applicant's dwelling and the Banksia combine to obscure all but a small portion of that window. The diagrams and Figure O2 in The Walls Report show that the Cypress hedge reduces direct sunlight to W1 by 65% at 9.00am, 56% at 10.00am [59% of 96%], 48% at 11.00 am, 43% at 12.00pm and 36% at 1.00pm. Over these 4-5 hours, about 49% of the area of W1 receives direct sunlight. There is no additional impact of the Cypress hedge on W1 at 2.00pm. At 3.00pm both windows are fully shaded by the dwelling.
4. The addition of the Leyland Cypress hedge shows that all direct morning sunlight to W2 is obscured. As such I am satisfied that trees towards the western end of the row of Leyland Cypress severely obstruct sunlight to W2. In putting the applicant's case at its highest I am also prepared to accept that the impact of the Leyland Cypress trees on W1 is at the margin of moderate to severe. This finding is based on the Court's not uncommon consideration of the usual minimum development controls required by most councils for new developments. This is typically at least three hours of sunlight to living room windows for at least 50% of their area on the winter solstice.

Views

1. The applicant has nominated eight viewing positions from his dwelling. Viewing points V1-V4 are from various points within the open plan kitchen and dining area on the upper floor. All viewing angles are shown as views through W1 to the north and northeast. V8 is from the north-eastern end of the extensive verandah which adjoins the kitchen/dining area. V5 from within the bedroom on the lower level through a window indicated as W5 - a north-north-westerly facing window. V6 is also from within the bedroom but through W2. Another viewing point V8 is shown from a living room on the lower floor through a window denoted as W8. The field of view allegedly obstructed by the trees from this point is to the north.
2. The applicant contends that the trees, specifically the Leyland Cypress and the Banksia, severely obstruct views from V1-V4 through W1, V8 (upper floor verandah) and V6 through W2, of the northern section of Tambourine Bay and the jetty. He submits that as other trees grow [presumably the Blueberry Ash] that views of Tambourine Bay from V5 and lower level V8 will become more restricted.
3. With the benefit of the site inspection, I am satisfied to the extent required by s 14E(2)(a)(ii) that views of the northern extremity of Tambourine Bay, and perhaps the jetty, through W1 and W2 from the nominated viewing points are severely obstructed by the Leyland Cypress at the north-western end of the row. I am not satisfied that the Blueberry Ash trees are severely obstructing any views from V5 and from the lower level V8 nor from the upper level verandah -V8.

Balancing of interests

1. Thus as s 14E(2)(a) is met for the Leyland Cypress, for both obstruction of sunlight and of views, the balancing of interests inherent in s 14E(2)(b) must be considered. This requires consideration of matters in s 14F of the Trees Act (relevant sub-sections in brackets).

• The trees are located very close to the common side boundary between the parties' properties (s14F(a));
• The applicant purchased his property in 1994. The respondents' landscaper planted the Leyland Cypress in a raised planter box along part of the common side boundary in or about 1999-2000. According to the respondents' evidence (Exhibits 5 and 6), the Cypress and other native trees replaced a row of Alder which was well-established when the respondents purchased their property in 1997. It is unclear from the photographs provided by the respondents as to whether some Leyland Cypress were also present [if there were, they have been removed] however it is clear that there was a large Willow tree close to the boundary and roughly proximate to the current location of the Banksia. The applicant recalls that the Alders were no higher than the roof of the respondents' dwelling (Exhibit B) (s14F(b)(c));
• In February 2015 Lane Cove Council granted the respondents development consent for the rebuilding and enlargement of the existing swimming pool and associated works including landscaping. Condition 24 of the consent (Exhibit 1) requires the adoption of Landscape Plans prepared by Peter Glass and Associates Landscape Designers. The landscape plans (Exhibits 8 & C) show the existing Cypress hedge and other trees [including what is presumed to be the Banksia] to be retained. The plans do not show the actual height of the Leyland Cypress at that time (s14F(e));
• Mr Baird for the respondents submits that the trees contribute to the natural landscape and scenic value of the respondents' property; Mr Drury for the applicant contends that as exotic species they contribute little (s14F(h));
• Arboricultural evidence [as per s 14F(k)] is considered below - see [24];
• The respondents value the trees for the privacy they afford their pool, associated private open space and part of their dwelling. The trees were planted as a screen and have been maintained as a tightly clipped hedge since 2000 (Exhibits 2 and 8]. They are a component of the landscape design and, as stated above, were required by Lane Cove Council to be retained. Mr Drury contends that reducing the height of the trees to enable views of the northern part of the Bay from W1 would not create a privacy problem for the respondents given the width of the hedge (s14F(l));
• Sunlight to W1 and W2 is partly obstructed by the parties' dwellings and associated structures and by the Banksia, however, as noted above, the Leyland Cypress closest to these windows create an additional obstruction. In regards to views from these windows, absent the Leylands, the views of the jetty and parts of the northern end of the Bay from these windows would be constrained by the Banksia and by a Jacaranda close to the respondents' north-eastern boundary (s 14F(m));
• According to the respondents' evidence, the applicant was initially consulted about the removal of the existing row of Alders and the replacement species. Although the recollections of the parties differ as to conversations about the trees and the frequency and extent of pruning, it is apparent by their form that the respondents have had the Leyland Cypress trees regularly maintained up until access onto the applicant's property became an issue. The last pruning was carried out in November 2016. Mr Baird submits that the applicant supported the proposed pool extensions and landscaping and signed a letter to that effect in November 2014 (included in Exhibit B). The applicant states that he did not draft the letter but he did sign it. The correspondence between the parties suggests that the hedge became a source of disagreement between the parties in 2016 but that efforts have been made to reach an agreement (s14F(n));
• The amount of sunlight lost is discussed in [18]-[19] (s14F(o)). Mr Baird presses the abundance of ambient light in both the kitchen/dining room and the lower bedroom provided by the north-facing and other windows;
• The trees are evergreen (s14F(p));
• The nature of the affected view is considered in [20]-[22] above. In regards to the nature and extent of the remaining view (s14F(q)(r)), 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 in Tenacity considers the nature of the view - whether the view is of iconic structures (such as the Opera House and Sydney Harbour Bridge), 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 view in contention would be best described as a partial and oblique view of the northern extremity of Tambourine Bay including water and the land water interface and surrounding vegetation. Although the applicant described the view of the jetty as "iconic" it is unlikely to be regarded as such, or even known, by most people beyond the immediate vicinity of that structure.
• The second step in Tenacity 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 views through W1 were observed from standing and sitting positions. The view in contention is across a side boundary. Much wider views of Tambourine Bay are available through the full-size glass doors and windows on the northern façade of the applicant's dwelling, and from the terraces and other living areas, across the applicant's rear boundary. Mr Baird contends that the wider view to the north is the primary view and that the views through W1 and W2 are peripheral. Mr Drury presses that the view in contention is the focus of the proceedings rather than views in other directions and should thus be afforded equal weight.
• The third step considers the use of the rooms from which the views may be affected - views from living areas and kitchens 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. W1 is located close to the kitchen sink but when standing at the sink, close to V1, the view is very oblique and constrained by the Banksia. From all viewing locations, whether sitting or standing, it is possible to turn and look to the north and see a large portion of Tambourine Bay. In the lower bedroom, expansive views to the north/north-northwest are available through the large north-facing window in that room.

Arboricultural evidence

1. Both parties obtained arboricultural and landscaping advice with some relevant experts present during the hearing. The applicant engaged Mr Hugh Taylor, Consulting Arborist to inspect the trees and prepare a report. His report dated 16 February 2017 is included in the application claim form. Mr Taylor refers to diagrams and photographs provided by the applicant as well as observations made and photographs taken during his inspection. He comments on the form of the trees after being pruned in November 2016; in his opinion the trees were in poor form. Mr Taylor concludes in [23] of his report that "Pruning of the x Cupressocyparis leylandii to an acceptable height [presumably that desired by the applicant] to restore light and views within the applicant's property would be severe and could kill some trees or severely affect other trees. Pruning would leave very little foliage and the trees would appear woody and unattractive". He does not provide any indication of a height that might be tolerated by the trees. Mr Taylor attended the hearing and gave oral evidence.
2. The respondents engaged Mr David Gowenlock, Consulting Arborist, to inspect the trees. His report dated 7 August 2017 (Exhibit 3) notes the Leyland Cypress hedge to be in fair to good condition with the trees responding well to the November 2016 pruning. Relevant to the trees to which Part 2A applies, Mr Gowenlock recommends reducing the height of the Leylands by one metre and subsequent biannual maintenance to that height. In his opinion this would provide the applicant with water views and sunlight. Mr Gowenlock opines that the extent of pruning desired by the applicant would severely affect and possibly kill some of the trees and is not to be recommended. Mr Gowenlock's opinion is supported by Mr Luke Baldwin (Exhibit 4). Mr Baldwin's company, Formed Gardens, was the project manager and head contractor engaged for the installation of the respondent's pool and landscape. The respondents also engaged Mr Stuart Sutton, arborist and landscaper, to prepare a report (Exhibit 2). Mr Sutton states that over the last eight years he/ his company (Ezigrow) has regularly hedged and maintained the trees and have liaised with the applicant over that time. He states that it was his understanding that the Leyland Cypress be trimmed to be level with the applicant's kitchen window (W1). Mr Sutton concurs with the other experts, including Mr Taylor, that pruning to the height desired by the applicant would be very detrimental to the health and survival of the conifer hedge. Mr Baldwin and Mr Sutton attended the hearing.
3. During the on-site hearing, the arborists, Mr Sutton and Mr Taylor, with some assistance from Mr Baldwin, were asked to re-inspect the trees and determine what if anything could be removed from the trees without causing undue harm to the trees' health and structure. After careful consideration, the arborists agreed that only the top 500mm of regrowth should be removed; that is, back to the level of the November 2016 pruning event. They agreed that any additional reduction in height could lead to a decline in the health and vigour of the trees, especially the three trees at the south-western end of the row.

Findings

1. Having had the benefit of the site inspection, reviewing the evidence and hearing from the parties' lawyers and experts, I am satisfied that some reduction in the height of the Leyland Cypress is warranted to enable some more direct sunlight into W1 and enable some standing views of the vegetation to the north from W1, although not to the level desired by the applicant.
2. All arboricultural and horticultural experts agree that reducing the trees to the top of the wall, which would allow sunlight into and views from W2, would place the trees under too much stress and, in my opinion, would be tantamount to removal of the Leyland Cypress. I am also satisfied that while the Leylands replaced a row of Alders that quite possibly obstructed views from and sunlight to the applicant's dwelling, the Leylands are the subject of the application now before the Court and for a while, the applicant enjoyed views to the northern end of the Bay. However, it would also appear from the material before me, and with the horticultural and arboricultural expertise I bring to the Court, that the trees were well-established and probably above the height of the boundary wall when the applicant signed the letter supporting the respondents' development application including the landscape plans. While I note, as did Mr Drury and Mr Baird, that the respondents' arborists initially considered a reduction in height of one metre to be tolerable, the agreed view of the parties' arborists on the day of the hearing was that 500mm should be the limit. I have given considerable weight to this agreed position.
3. In regards to the balancing of interests, reducing the height of the trees to the top of the wall would also enable overlooking of the respondents' pool, private open space and part of their dwelling from W1 and W2. I also note that the applicant's dwelling is oriented to take advantage of the broader view of Tambourine Bay across his rear boundary; this 'primary' view is unobstructed by any of the trees to which part 2A applies and is available from all of the nominated viewing positions.
4. I am not satisfied that the Court's jurisdiction to make orders under s 14D of the Trees Act runs to the making of an order for the installation of privacy screens on the applicant's dwelling. This would probably require the lodging of a Development Application. Even if I had the power to make that order, it is not one I intend to make. The modest pruning of the trees recommended by the arborists will not adversely affect the respondents' privacy and, in my view, it is unlikely that even reducing the height by one metre, as originally proposed by the respondents, would cause a problem with privacy.
5. As a consequence of these findings, the Orders of the Court are: 1. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3 in Arboriculture) with appropriate insurance to prune the 11 x Cupressocyparis leylandii 'Leighton Green' to the level of the stubs created by the November 2016 pruning event (that is, to 3.5m above the top of the wall between the parties' properties) and remove any resulting debris from the applicant's property. 2. The works in (1) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard. 3. Should it be required, the applicant is required to provide all reasonable access on reasonable notice, for the purpose of quoting and the safe and efficient carrying out of the works in (1). This includes but is not limited to the erection of scaffolding or similar. 4. Subsequent to the initial pruning within the next 30 days, the works in (1) are to be carried out every April and October until such time as the trees are removed. Orders (2) and (3) apply to order (4).

Judy Fakes Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2017