Wood v Barnes & anor

The trees and the site

1. The application claim form suggests two rows of Giant Strelitzia [Strelitzia nicolai] along the common boundary. Row 1 comprises trees T1-T21 (western row), row 2, T22-32 (eastern row). With the horticultural expertise I bring to the court I note that Strelitzia spp.(commonly referred to a s 'Bird of Paradise') are soft-wooded species that produce shoots from underground rhizomes and develop as clumps of shoots. As the common name implies, the Giant Strelitzia is the tallest growing with shoots up to 6m.
2. The parties' properties are on adjoining lots. The respondents' dwelling downslope and to the west has a more 'conventional' alignment of the dwelling on the lot, from northwest (perpendicular to the street) to northeast (rear façade). The applicant's dwelling is constructed diagonally across the lot from south to north.
3. The applicant stated that he had attempted to count the individual stems of Strelitzia along the common boundary.
4. At the on-site hearing, the trees were viewed from the respondents' property. Rather than a continuous row, I observed what appeared to be 3 x clumps of Strelitzia in the western row and two clumps in the eastern row. All clumps have some stems in excess of 2.5m with some stems in the western row up to 6m. On a number of occasions, the Court has considered applications concerning clumping species such as Golden Cane Palms, Strelitzia and Bamboo and has determined that each 'tree' is the clump rather than the individual stem as the 'clump', albeit of perhaps few stems, is more often than not what is planted. Therefore rather than 21 trees in row 1, I am of the view there are three 'trees', and likewise in row 2, two trees not 10.
5. The Strelitzia are some of many trees and shrubs growing along the common boundary. To the west is a clipped Camellia hedge. In the garden bed in which the Strelitzia are growing are a number of Bangalow Palms, Strelitzia reginae [the common smaller form of Bird of Paradise] as well as a number of remnant Eucalypts including both Blackbutt and Sydney Blue Gum, camellias, and tree ferns. Near the north-western corner of the respondents' property is a large Coral Tree.
6. The respondents purchased their property in 1992 and stated that the trees were planted to provide privacy from the applicant's dwelling and to create a more tropical feel.
7. The respondents were asked when the Strelitzia were planted. According to the first respondent, the eastern-most clump in row 1 was planted in about 1995 along with some Bangalow Palms. He stated that it was planted as a single clump. In 2005/2006, the respondents planted the other two clumps in row 1 after the applicant removed a large and spreading Canary Island Date Palm from his back garden which had screened the respondents' dwelling from the applicant's dwelling and the subsequent extension in 2005 of the applicant's dwelling closer to the common boundary. The two clumps in row 2 were planted in about 2011 on separate terraces in a lower garden bed to the east of row 1 and to the west and upslope of their pool. I observed the clumps in row 2 to be at least 3m apart and on different levels.
8. In Johnston v Angus [2012] NSWLEC 192 Preston CJ considers, amongst other things, the criteria relevant to the determination that the trees the subject of an application form a hedge, and were planted so as to form a hedge. These criteria include proximity, planting arrangement, species, relationship between species if the planting is a mixture of species, and function of the planting. Relevantly at [43], the age is relevant as a tree planted a number of years before/after other trees could not have been planted so as to form a hedge with such trees as they were not in existence.
9. In addition, I have determined on a number of occasions that any one 'hedge' must be planted in a single event (see Coleman & anor v Leddy & anor [2013] NSWLEC 1094, Catlin v King & anor [2016] NSWLEC 1603).
10. On the respondents' uncontested evidence, I find that the eastern-most clump in the first row, having been planted as a single clump, presumably from a single container, in a single event in the early 1990s, is not a tree to which Part 2A applies. I am satisfied that the other two clumps to the west in that bed, which were planted at the same time and which are relatively close to each other, are trees to which the Part applies. However, I am not satisfied to the extent required that the two clumps in the second/ lower bed are trees to which the Part applies given the relatively large distance between them at their base and their location on separate terraces. However, if I am wrong in this I will give consideration to the impact of these trees in row 2 on the applicant's views and sunlight.
11. 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.
12. 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.

Sunlight

1. The applicant has nominated two sets of windows. W1 comprises the glass sliding doors of the open-plan living room which open onto the large rear deck; W2 comprises six panels of glass in the adjoining family room. All windows/ glass doors face north. Both windows are on the northern façade of the dwelling; W1 is on the eastern end and W2 on the western end. The westernmost clumps are to the north-west of W1 and W2; the easternmost clumps are to the north of W1 and north-east of W2. These windows were installed in 2005 when the applicant extended the rear of the original dwelling.
2. The applicant has attempted to illustrate the shadows cast by the Strelitzia onto the windows between May and October. He estimates 10 hours per day are lost. Two photographs taken in June 2016 show shadows cast on the windows.
3. While it is entirely possible that the Strelitzia to which the Part applies, being the plants to the northwest and north of the nominated windows do obstruct sunlight to those windows over the nominated period, the evidence is insufficient to determine the severity of that impact directly attributable to those particular trees given the many other plants and structures that are also likely to cast shade on the applicant's windows. These other obstructions include the large Eucalypts, Coral tree, palms and other shrubs, not just those close to the boundary but also further downslope, that are growing on the respondent's property as well as the heavy timber pergola above the applicant's deck.
4. Therefore on the available evidence I cannot be satisfied to the extent required that s 14(E)(2)(a)(i) is met and the application with respect to obstruction of sunlight is dismissed.

Views

1. The view the applicant contends he has lost as a consequence of the respondents' Strelitzia is the view to the north, through the other trees on the respondents' property to the reserve to the north. The reserve comprises an open area of mown grass surrounded by native forest; Darling Mills Creek is to the north of the grassed reserve.
2. 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 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.
3. 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.
4. In this matter, only the two Strelitzia in the second row could be considered as obstructing the view of the reserve from the three nominated viewing positions. V1 is through W2 - family room, V2 through W1 - glass doors adjoin the deck and V3 from the large deck. The westernmost clumps do obstruct views of the respondents' dwelling from the applicant's dwelling but they are not the views in contention. However, for the record I measured an approximate eye height from the applicant's living room and from the deck to be about 2.5-3m above ground level on the applicant's side of the boundary fence. I note that as the respondents' dwelling is below and set back from the applicant's dwelling, vegetation maintained to approximately this height would still maintain the respondent's privacy.
5. In applying the Tenacity approach, the views would be described as partial district views of vegetation across a rear boundary from living areas. The view of the reserve can be seen from the north-eastern corner of the deck. Given the extent of other vegetation on the respondents' property growing at different heights, the view of the reserve would be highly constrained in the absence of those plants. Given my initial lack of satisfaction that these two plants are trees to which the part applies, combined with this observation, I cannot be satisfied to the extent required by the Trees Act that s 14E(2)(a)(ii) is met. As a consequence, this element of the application is also dismissed.
6. Therefore, the Orders of the Court are: 1. The application is dismissed.

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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: 02 March 2017