Yeates & anor v Goff

Land and Environment Court (NSW)|2011-11-28|Before: Mr P, Sheahan J

Judgment 1COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in North Curl Curl against the owner of trees growing on an adjoining property. 2The application seeks orders for the removal of bamboo and a row of Ficus benjamina growing on the respondent's property along the common boundary with the applicants. These orders are sought on the basis that the trees severely obstruct views from the applicants' dwelling. 3There are two clumps of bamboo, one clump, noted as T5 on the plan in the application, is adjacent to the applicants' front balcony/ deck along part of the northern boundary of the respondent's property; the other, T6, is growing along the eastern boundary of the respondent's property. 4Since the making of the application, the Ficus benjamina have been pruned and their removal is no longer pressed. The parties have also agreed to Consent Orders for the pruning of the bamboo, twice a year, to the height of the top handrail of the applicants' front balcony. 5While the Court has the power under s 14D(1)(b) of Part 2A of the Act to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of any view from a dwelling situated on the applicant's land, including orders agreed to by the parties, it must first satisfy itself that the relevant jurisdictional tests are met. This is clarified by Sheahan J in Breen & Anor v Caronna & Anor [2008] NSWLEC 293 at [6] in regards to consent orders sought in an application made under Part 2 of the Act. 6 The Chief Judge has assigned Commissioner Moore and Acting Commissioner Thyer to deal with this case, including those serious considerations. The Commissioners are part-heard. They certainly can make consent orders to dispose of a tree dispute, but they must first be satisfied of the matters in s.10, and must consider also the matters in s.12, of the Tree Disputes Act . These sections are comprehensive in their terms, and simply must be observed before orders are made. 6Therefore when parties seek consent orders, it is the Court's practice to commence the hearing on site so that the relevant jurisdictional matters can be determined. In applications made pursuant to Part 2A, the relevant jurisdictional tests are s 14A, s 14C and s 14E. Section 14C relates to notice and is not in issue.

The assessment framework 7The hearing commenced on site with an inspection of the bamboo growing on the respondent's property. I am satisfied that s 14A is met, and that Part 2A applies, as there are two or more trees planted so as to form a hedge that rise to a height of at least 2.5m and are on appropriately zoned land. Bamboo is prescribed in the Trees (Disputes Between Neighbours) Regulation 2007 as a 'tree' for the purpose of the Act. 8The next relevant test is s 14E(2)(a)(ii) which states: (1) The Court must not make an order under this part unless it is satisfied that: (a)the trees concerned: (i)are severely obstructing a view from a dwelling situated on the applicant's land, and... 9That is - do the trees impact on views from the applicant's property? If there is an impact on views, is it severe? 10If the impact on views is severe, the Court must then consider s 14E(2)(b). This states: (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. 11In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D, but only if the jurisdictional tests in s 14A(1) and s 14E(2)(a)(ii) are satisfied.

The hearing and the evidence 12The views and the trees were inspected from the applicants' property. It is noted that the bamboo in contention has been pruned to a point where T5 is just higher than the top handrail of the applicants' balcony; T6 has also been pruned. The views in contention are from W1 a bathroom window, W2 a bedroom window, W3 and W4 living room windows - windows W1-W4 face south, W5 a west-facing window of the living room and from a deck off the living room. I was also taken to the dining room located on an elevated section of the living room towards the rear of the living room. 13The views in contention are those to the south and include the ocean/ horizon interface, Curl Curl Beach, Manly and North Head as well as views to the southwest of Curl Curl Lagoon. Views to the west are district views to Brookvale and the ridgeline of Allambie Heights. 14The applicants consider both sitting and standing views to the south and southwest to be affected. They contend that T5 and T6 severely obstruct their views from all of the nominated viewing positions. 15From a standing position in the bathroom the applicants contend that 50% of the view through W1 is obscured by T6. The lost views, they say, are of the nearby coastal reserve and the ocean/horizon. I note the remaining view includes the beach and Manly. I also note that if one stands reasonably close to the window, the water and horizon can be seen to the northeast of T6. From part of the bedroom the applicants contend they cannot see the entire horizon through W2; I estimate a loss of about 10% of the view as a result of T6. The remaining view from W2 includes the entirety of Curl Curl Beach through to Manly and North Head. 16In the living room I was asked to sit on one end of one of the sofas. The applicants contend that 50% of the horizon/ocean interface in the southeastern quadrant, i.e. from North Head in the south to some point to their east, is obscured by T6. While some parts of T6 did interfere with the horizon, there are uninterrupted views of Curl Curl Beach (including the surf zone and sand) to Manly and the whole of North Head. The roof of the respondent's dwelling limits views to the coastal reserve. Elsewhere on that sofa, the views were less obscured. Looking through the west-facing window, there were views to the lagoon and to Brookvale and Allambie Heights in the distance. From a sitting position in the dining room, there was a negligible impact on the views through W3. 17From a sitting position at the eastern end of the outside table on the deck, T5 obstructed the view of the beach however the water, headland and lagoon were unobstructed. At the western end of the table, the surf was visible and the headland was slightly obscured. 18Mr Zacharatos for the applicants submits that the impact on the views should be considered from the perspective of the applicants' day to day use and enjoyment of their dwelling. In essence that the applicants should be able to enjoy the entirety of the views that were once available to them from any sitting, or indeed laying, position. He contends that the Act uses the term 'a view' and in his clients' case, he states that from each window and nominated viewing position, 'a view' is severely obstructed by the two clumps of bamboo. 19Ms Taylor for the respondent considers that there are no longer any severe obstructions to any of the views. She contends that the whole of the view available from the whole dwelling must be considered. In this she submits that the applicants can see the horizon, Manly, North Head, the lagoon, beach and other district views from many parts of their dwelling and that some rearrangement of the furniture could improve the views from some viewing points. She contends that the test in s 14E(2)(a)(ii) is not currently satisfied.

Findings 20Section 14E(2)(a)(ii) requires the impact on a view to be severe before the balancing and discretionary matters in s 14E(2)(b) and s 14F can be considered. There is an increasing volume of caselaw, published on the Land & Environment Court's website, relating to applications made under Part 2A of the Trees Act. A number of earlier judgments are relevant here. 21Before considering the severity of any obstruction, it is relevant to consider the words a view as used in s 14 of the Act. This is considered in Haindl v Daisch [2011] NSWLEC 1145 by Moore SC and Hewett AC at [26]: 26 However, we are of the opinion that the words a view used in s 14 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. 22In a number of cases including Ball v Bahramali & Anor [2010] NSWLEC 1334 and Haindl , the Court has considered the word 'severe' and the high bar it sets. Relevant definitions from the Macquarie Dictionary and the Oxford Dictionary include: harsh, harshly extreme, grievous, extreme, hard to endure, causing great discomfort or distress. In Haindl at [64] Moore SC and Hewett AC said the following: 64 It is clear to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both qualitative and quantitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction of that view. 23In determining applications made under Part 2A concerning obstruction of views, the Court has commonly referred to the planning principle set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. The first three steps of the four-step process are considered relevant to Part 2A. 24Step 1 in Tenacity: 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 25In this matter, the views include the ocean, land water interface, a beach, a lagoon, Manly, and the iconic (as described in Tenacity ) North Head. These are unquestionably desirable and valuable views. 26Steps 2 and 3 in Tenacity consider the part of the property from where the views are obtained and the extent of the impact. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front or rear boundaries. In addition, whether a view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property and not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe, or devastating. 27I am not satisfied that the impact of T6 on the views from the bathroom and the bedroom could reasonably be assumed to be severe. At best they are minor when the full extent of the view is considered. As with W1 and W2, I am not satisfied that the views through W3, W4 and W5, even from sitting positions, are severely obstructed by either T5 or T6. Similarly, there is only a minor obstruction of views from some sitting positions on the deck. 28I am of the same opinion of Moore SC and Hewett AC in Haindl at [26] that the words 'a view' do not justify a slice by slice approach of the overall view, particularly when an expansive view is readily available. The word 'severe' sets the bar high. While I accept that the bamboo may have more severely impacted on the views when the application was made, it was not severely obstructing the view at the time of the hearing. The use of the word 'are' in s 14E(2)(a)(ii) has been examined in a number of judgments including Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] with further discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]. 29Therefore, despite the powers in s14D to make orders, I am unable to make the consent orders agreed to by the parties on the basis that the jurisdictional test in s 14E(2)(a)(ii) is not met. If the parties come to an agreement between themselves about the maintenance of the bamboo, assuming it does not transgress the local council's Tree Preservation Order, it is a matter for them and not the Court. 30Therefore, the Orders of the Court are: (1)The application is dismissed.

J Fakes 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: 29 November 2011

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