Williams v Johnson

The onsite hearing 4The hearing took place this morning on site. Mr Williams engaged the services of Mr Warwick Varley, arborist, to provide a report and to appear as an expert witness at the hearing. To avoid presenting his case in what he thought might be a too-emotive fashion, Mr Williams asked Mr Varley to be his agent by presenting his case and making submissions at the hearing. It turns out that Mr Varley also completed Mr Williams' application form, with errors, although the Williams would have apparently had no difficulties doing this themselves. 5A person cannot be both the advocate for a party and an expert witness in the proceedings. Clause 2(3) of Schedule 7 to the Uniform Civil Procedure Rules 2005 states: An expert witness is not an advocate for a party. 6Mr Varley should not have accepted this role as agent or advocate. He has stated in his report that he agrees to be bound by the Expert Witness Code of Conduct in accordance with Schedule 7 to the Uniform Civil Procedure Rules 2005. However if he has read the schedule he did not understand it and has not complied with it. Mr Varley's report fails to meet other requirements of Schedule 7. For instance, his qualifications are not included, only professional memberships. 7I informed Mr Varley that he could not be Mr Williams' agent. Thereafter the Williams spoke for themselves and Mr Varley provided arboricultural evidence. The initial misunderstanding has not hindered Mr Williams' case in any way.

Trees 8The trees are three Tuckeroos (Cupaniopsis anacardioides) and seven Blueberry Ash (Elaeocarpus reticulatus) planted at close spacings in a linear fashion adjacent to the boundary. They all rise to a height of more than 2.5 metres. They appear to have been planted at two different times. The first planting of Tuckeroos formed a hedge. The subsequent planting of Blueberry Ash consolidated that hedge. 9I am of the view that the ten trees form a single hedge, however they could equally be regarded as forming two hedges, one of each species. The application, however, only refers to the Tuckeroo trees. Mr Williams says he wants orders for all the trees. Mr Williams might have benefited from completing the application himself. However, due to my findings below, this misunderstanding is irrelevant and also has not harmed Mr Williams' case.

Mrs Johnson wants privacy 10Mrs Johnson showed me from her property the trees and her issues of privacy and overlooking. She pointed out that the Williams' privacy screen on their rear deck does not conform with Condition 58 of their Development Consent DA-2011/350. She says the Williams can look through their window and the deck screen into the bathroom window on her upper level, the rear deck outside a bedroom on her upper level, the lower level rear deck outside her living area, and into her rear garden. 11The Williams showed me their window and the screen alongside their deck. They say that although the screen can be opened, it is fastened shut and has only been opened for maintenance. The louvres open and provide more than the Development Consent's condition of a maximum 25% opening. However the Williams say they angle the louvres horizontally to look out to the sea, or upwards to allow sunshine, rather than downwards to look into Mrs Johnson's garden.

Views 12The window in the application is near their dining room table. It has a high sill, so overlooking is only possible if one stands right at the window. This would be unnecessary to capture views, as vast views are available through large full-length windows at the southern end of the open living area. Only sky views are available through this window from seated positions. A broad view of the sea is available standing in the dining area, looking to the east, which is the way the window faces. Standing back in the kitchen area, the view through the window is to the northeast. It is this view that is partially obstructed by the tops of the Tuckeroo trees. The Blueberry Ash trees do not obstruct the view at all. 13I accept that the tops of the Tuckeroo trees partially obstruct the view to the northeast. Mrs Williams says they used to be able to look up the coast to Austinmer. However I note that the substantial part of the view, directly to the east, is not obstructed at present. It was clear from the Williams' submissions that they are concerned not only for the current obstruction, but the greater obstruction that will develop with further tree growth. Mr Varley explained that the trees are still relatively young and fast-growing. He referred to photographs in his report that show their growth over relatively short periods. 14I find that, although the Tuckeroos obstruct part of a view, it is not a severe obstruction at present. The bar regarding the severity of obstruction required under the Act has been set high in previous matters, for instance by Fakes C in Van Hoorn v Sullivan & anor [2013] NSWLEC 1111 at (34) and by Moore SC and Hewett AC in Haindl v Daisch [2011] NSWLEC 1145. With regard to any future obstruction, the severity of the obstruction must be assessed at the time of the hearing (see Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122). Therefore, I cannot make any orders based on view obstruction. I accept that the trees are growing rapidly and it is likely that they will obstruct a greater part of the view in the future. Should that be the case, the Williams can make a new application to the Court, as that would be a change in circumstances as explained in Hinde v Anderson & anor [2009] NSWLEC 1148.

Sunlight 15Similarly, based on their current size and position, I find that the Tuckeroo trees do not create a severe obstruction of sunlight to the window. They may prevent an hour or so of morning sunlight reaching this one window, but that does not seem severe. The Blueberry Ash trees are not as tall and do not obstruct sunlight. Again, I accept the Williams' submissions and Mr Varley's statements that the trees are growing quickly and are likely to obstruct sunlight to the window more significantly in future. However assessing the current situation I cannot make any orders based on sunlight obstruction.

Conclusion 16I find there is no jurisdiction for the Court to make orders as the obstruction of sunlight and views is not currently severe. 17As explained above, if circumstances change and a severe obstruction of sunlight or views develops, the Williams can make a new application. Both parties expressed their strong views that they want this hearing to bring an end to the matter, which has been stressful to both. It seems that if nothing is done about the growing trees, this is unlikely to be the end of the matter. 18Because I have found there is no jurisdiction over the trees, I have not had to consider issues of privacy. Mrs Johnson made submissions about her privacy, but I noted that there would be little if any impact on her privacy if the trees were pruned and maintained at window sill height, as the Williams request. The request does not appear unreasonable. The Williams had unobstructed views when they built here and, unless action is taken soon, one view may become severely obstructed.

Orders 19Based on the foregoing, the Court orders that: (1)The application is dismissed.

D Galwey 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: 28 August 2014