Zhang v Davidson

Land and Environment Court (NSW)|2019-11-21

The application

From the heights of Vaucluse, views to the west take in the harbour, the Harbour Bridge and the Opera House. Seeking to retain such views, Jianqiu Zhang ('the applicant') has applied to the Court pursuant to s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), wanting orders for trees in a neighbouring hedge to be maintained below a certain height. The hedge is formed by a row of Leyland cypress (Cupressus × leylandii) ('the trees'), planted close to the common boundary on the neighbouring property owned by Bruce Davidson ('the respondent').

Background

Mr Davidson has lived here for some time. After Mr Zhang bought the property adjacent to Mr Davidson's, he asked Mr Davidson in 2017 to prune the trees. At that time Mr Zhang was not living at his property, but was undertaking renovations. Mr Davidson refused Mr Zhang's initial request, wanting to wait until Mr Zhang moved into the property before taking any action.
After Mr Zhang moved into his property and again requested that the hedge be pruned, Mr Davidson complied and since then has regularly pruned, or allowed to be pruned, the hedge at a height that maintains Mr Zhang's views. Mr Zhang wishes to ensure that those views are not obstructed in future.

Framework of this decision

Part 2A of the Trees Act applies only to hedges that reach a certain height. 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). (2) ...
The parties agree that the trees are planted so as to form a hedge and they are more than 2.5 metres tall. Observations at the onsite hearing confirmed this to be the case. Trees were measured and are up to 3.5 metres in height. They are planted closely in a row, forming a dense screen along the common boundary.
Before the Court can make orders, it must be satisfied that the applicant made reasonable effort to reach agreement (s 14E(1) of the Trees Act). The history of communications between the parties, as set out by each of them, shows that Mr Zhang has attempted to reach an agreement, and the parties have come to such an agreement, or a suitable compromise, for the maintenance of the hedge so far. Mr Zhang seeks orders to ensure such a state of affairs continues in future.
The jurisdictional test regarding the view obstruction is set out at s 14E(2): 14E Matters of which Court must be satisfied before making an order (1) … (2) The Court must not make an order under this Part unless it is satisfied that: (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.
Mr Davidson disputes that the trees severely obstruct the view from Mr Zhang's dwelling. I must therefore determine if the trees are severely obstructing a view from Mr Zhang's dwelling, and if so, after considering other relevant matters set out at s 14F, whether the severity of the obstruction outweighs any reasons not to interfere with the trees.

Onsite hearing

The hearing took place onsite on 21 November 2019, allowing observations of the trees and views. Mr Gavin Shapiro, solicitor, represented Mr Zhang, with evidence from Mr Tom Moody, planner, and Ms Catriona Mackenzie, arborist. Mr Richard Buttrose represented Mr Davidson, with evidence from Mr George Palmer, arborist.

The nature of the views

Mr Zhang's dwelling has three levels: the ground level with living areas, a first floor above with bedrooms, and a basement with a gym and other utility rooms. Mr Zhang does not claim any view loss from the first-floor bedrooms, so there was no need to observe views from there. The view was observed from the principal viewing areas in the living areas on the ground floor, through large floor-to-ceiling windows and doors. The views available here include the neighbourhood of Vaucluse down to the harbour, a broad view of the harbour across to the suburbs to its north, the Harbour Bridge and the sails of the Opera House. These are valuable views, with the bridge and the Opera House perhaps their most prized elements.

The view from the basement level

Mr Shapiro took the Court to the basement level, from which views are obstructed by the hedge. Having observed the views from the living areas above, I accept that the hedge severely obstructs a view from the basement. That view might be similar to the ones described above, but perhaps would be otherwise limited by their lower elevation. Mr Shapiro conceded that: firstly, the basement configuration is a result of Mr Zhang's renovations to the dwelling, so the view may not have been available from windows on this level of the dwelling when he purchased the property; and secondly, the nature and use of the rooms on this level would rate their views as being of lower importance according to the principle in Tenacity Consulting v Waringah (2004) 134 LGERA 23, where Roseth SC set out an approach for assessing view loss and view sharing.
The Attorney General's 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the 2009 Review'), which led to the inclusion of Part 2A in the Trees Act, recommended that the new jurisdiction should be restricted to cases where the applicant has lost a view or solar access that was earlier available to them. There is no evidence that significant views were ever available to Mr Zhang from the lower level of his dwelling.
Rooms on the basement level are not principal living areas. Where windows on the ground floor have been designed to maximise the view, this is not the case for windows of rooms in the basement. The dwelling's residents are likely to spend most of their time on the ground floor. The Trees Act requires at s 14F(r) that I consider "…the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed…"
Therefore, despite the view obstruction on the basement level being severe, having considered matters at s 14F I would not make any orders to interfere with the trees on this basis.

The jurisdictional test must be met for each view

Mr Shapiro submitted that the test at s 14E(2) must only be satisfied for a view, as it is for the view from the basement, for the Court to have the jurisdiction to make orders to address any other view obstruction from the dwelling, whether that obstruction is severe or otherwise, if the obstruction is caused by trees in the same hedge. He argued, therefore, that even if I did not find the view obstruction from the ground floor living areas was severe, I could still make orders to prevent future obstruction of that view, as the trees are severely obstructing the basement view. His position was that the test must only be met for any view, not every view. I do not accept this proposition. The Court's jurisdiction to make orders is established at s 14D of the Trees Act (with my emphasis in bold): 14D Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of: (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the applicant's land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned. (2) … (3) …
According to s 14E(2)(a)(ii), the Court must not make an order unless it is satisfied that the trees concerned are severely obstructing a view…". Once over this jurisdictional hurdle, the Court can make orders, at s 14D(1)(b) to deal with "… the severe obstruction of any view … if the obstruction occurs as a consequence of trees that are the subject of the application concerned." Mr Shapiro argued that this gives the Court the ability to make orders to prevent the severe obstruction of any view, including a view other than the one that is already severely obstructed. I don't accept this interpretation of this section, as the subsequent phrase, "if the obstruction occurs as a consequence of…", ties the orders being made to the view that is severely obstructed. Therefore, although a view from the basement is severely obstructed by trees in the hedge, that finding does not enable the Court to make orders with the aim of preventing the obstruction of a separate view.

Are the trees severely obstructing a view from the ground floor living areas?

The parties provided various photographs taken over several years, including photographs taken from within Mr Zhang's dwelling, others taken from the street, and historical Google street-view images, showing changes in the hedge over time. These pictures validate the history described above at [2], [3].
Promotional photos of the applicant's property taken prior to Mr Zhang's purchase show that there was no view obstruction. Photos taken from the ground-level living areas during the renovation process show that the view was obstructed during that period as the trees had grown taller. All photos taken since Mr Zhang subsequently occupied his property, and observations at the onsite hearing, show that this view is not obstructed.
Mr Zhang stated that the hedge has been maintained at a height that retains his ground-floor views. The parties agree that the hedge should be maintained at the height of the floor level of the ground floor verandah.
The only photograph (included in Exhibit G) that shows a significant view obstruction from the ground floor was taken during renovations, before Mr Zhang occupied his dwelling. Mr Moody described the view obstruction in this photograph as high-severe or even devastating. The photo was taken from a standing position, so according to Mr Moody the obstruction would be devastating from a sitting position. Mr Zhang's son, whose children live with him at the dwelling, explained that the view obstruction would be more significant from the children's low viewpoints.
Mr Moody stated that photographs taken after and since Mr Zhang's renovations show the view obstruction is no longer severe.
In Steber v Job [2019] NSWLEC 1308 ('Steber'), the ongoing state of affairs was that a bamboo hedge obstructed the applicants' view, despite a temporary reprieve when it was pruned. In contrast, the ongoing state of affairs here is that the hedge does not severely obstruct a view from the applicant's living area, despite a short period when it may have done so while the property was unoccupied. At [44] of Steber, I wrote: "[44] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order."
In Holcroft v Rayner [2019] NSWLEC 1389, evidence showed that the jurisdictional tests of tree height and severity of obstruction were satisfied by the recent state of the hedge, and it was likely that such a state would recur in future. Orders were made on that basis. But in Watkins v Togias and Connelly [2019] NSWLEC 1355, there was no evidence showing a severe obstruction and the application was refused.
The evidence before me shows not that a severe obstruction is a state of affairs likely to continue or recur, but the opposite: that the hedge is being maintained in such a way that the obstruction is not severe and is unlikely to be so. As a result, I find that the trees are not causing a severe obstruction of a view from Mr Zhang's ground-floor living areas.

No orders will be made

Mr Zhang is worried that he might lose his view in future. A deed of agreement between the parties (in Exhibit 1) sets out the agreed maintenance of the hedge. Although Mr Zhang is satisfied with the terms of that agreement, he wants those terms to run with the land, should either property change hands. He wants orders from the Court for this purpose.
The aim of Part 2A of the Trees Act is to resolve disputes where trees are causing a severe obstruction of sunlight or views and the parties cannot agree on a suitable outcome. Where there is no severe obstruction of sunlight or views, and no dispute about a hedge's maintenance, the Court cannot make orders. Mr Zhang may want some certainty should circumstances change, but the Court does not have the jurisdiction to extend to him that certainty. However, if circumstances do change, he may of course make a new application and those new circumstances would be considered by the Court.
Both Ms Mackenzie and Mr Palmer gave evidence regarding the trees' growth rates and potential heights, and the impacts pruning may have on the trees. However these matters would require consideration only at s 14F had I found the ground-floor views are severely obstructed, which I did not.

Orders

As a result of the foregoing, the Court orders: 1. The application is refused.

Amendments 04 February 2020 - Correction to typographical errors found in 'Parties' and 'Representation' section of the cover sheet. 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: 04 February 2020

At a glance

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Judgment (11 paragraphs)

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