Barnes v Loveridge; Unicomb v Loveridge

[2016] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barnes v Loveridge; Unicomb v Loveridge [2016] NSWLEC 1108
Hearing dates:	18 March 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	The applications are dismissed.
Catchwords:	TREES [NEIGHBOURS] Part 2A – obstruction of views and sunlight; heritage and other discretionary matters; sunlight – insufficient evidence.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Manly Local Environmental Plan 2013
Cases Cited:	Allen Jack & Cottier v Manly Council [2006] NSWLEC 288 Deville & anor v Frith & anor [2014] NSWLEC 1002 Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 Knox v Love [2011] NSWLEC 1257 McDougall v Philip [2011] NSWLEC 1280 Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Smart & anor v Mann & anor [2013] NSWLEC 1179 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	21137 of 2015 Mr M Barnes (Applicant) 21138 of 2015 Ms C Unicomb (Applicant) Both matters: Mr J Loveridge (Respondent)
Representation:	Counsel: Applicants: Ms A Pearman (both matters) Respondent: Mr M Seymour (both matters)   Solicitors: Respondent: Clinch Long Letherbarrow
File Number(s):	21137 of 2105; 21138 of 2015

Judgment

1. COMMISSIONER:   In 2006, Manly Council granted conditional consent to Development Application DA 508/04 for alterations and additions to an existing cottage and the construction of a six storey residential flat building at 118 North Steyne, Manly.

2. The cottage, known as ‘Brise de Mer’, is listed as a heritage item in Schedule 5, Manly Local Environmental Plan 2013 and has a street frontage to North Steyne, opposite the beach. The associated residential flat building was constructed to the west and rear of the cottage. The cottage is legally described as Lot 1 DP1141595, and the apartment block is on Lot 2.

3. The respondent in both matters, Mr Loveridge, owns the cottage; the applicants, Mr Barnes and Ms Unicomb own the ground floor and first floor units respectively. Both applicants purchased their units in the early part of 2010.

4. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the removal of 14 Kentia Palms from the northern boundary of the respondent’s property and the restriction of any subsequent replacement planting to a height of 3m, being the height of the eaves of the cottage. [Leave was granted during the hearing for the applicants to substitute these amended orders in place of the orders proposed in the application forms which specified a maximum height of any replacement vegetation to 2.4m].

5. Mr Barnes contends that the palms severely obstruct both views from his dwelling and sunlight to windows of his dwelling. Ms Unicomb maintains that the palms severely obstruct views from her dwelling.

6. In applications under Part 2A there are a number of jurisdictional tests that must be satisfied sequentially before the Court’s powers to make orders under s 14D are engaged.

Section 14A(1)

7. The first of these is whether the trees are trees to which Part 2A applies. Section 14A(1) states:

(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).

8. The trees in question are identified in the application claim forms as 14 Kentia Palms (Howea forsteriana). The trees are growing in a curvilinear arrangement along part of the northern and western boundaries of the respondent’s property. The spacing between the palms is not uniform; the greatest gap is about 3 metres between trees 13 and 14, otherwise the trees are approximately 1-2 m apart.

Relevant background

9. There is some dispute between the parties as to whether the intent of the planting was to form a hedge, and if so, should all of the trees be considered as forming part of that hedge.

10. Much time was spent during the on-site hearing discussing various documents relating to the original development application and the subsequent consent. These documents are included in the parties’ joint bundle of evidence (Exhibit 1).

11. The Statement of Environmental Effects (SEE), dated October 2004, notes prior to development the site contained a single Kentia Palm on the southern boundary and several Raphis Palms towards the western boundary. However, it also states elsewhere that there were a small number of Kentia Palms along the western boundary. It notes that the Kentia Palm on the southern side will be retained in situ and the Raphis Palms will be relocated to other areas of the site. Elsewhere in the SEE it states that a row of trees and shrubs will be planted to the north which will assist in obscuring view paths from the site towards the adjoining development to the north [a block of units].

12. A photograph of the rear of the cottage taken from the western side of the boundary fence prior to reconstruction shows the Kentia Palm on the southern side, a large clump of Raphis Palms on the western boundary and a Cordyline sp. emerging above the Raphis Palms. The fence obscures the view of other plants that may have been growing on the site.

13. Appended to the SEE as Attachment 1 is a ‘Landscape Design Statement’ prepared by Mather and Associates, Landscape Architects. It also includes a schedule of recommended species. Relevantly, the Statement includes the following comments [extracted from the full statement]:

There are no noteworthy garden areas on site and little existing vegetation. Existing trees and shrubs on site are few and are dotted along the southern and western boundaries of the site. Existing trees and shrubs consist of Kentia Palms, Raphis Palms, Crepe Myrtle, Frangipani, Cordyline a Callistemon and some Oleander. It is proposed to retain the Kentia Palm on the southern boundary. Further, it is suggested that the Raphis Palms may be transplanted for use in the future landscape development.

The landscape treatment can be divided into the following distinct zones:

Cottage Landscape

Beachside cottage theme, viewed mainly from Nth Steyne Road and the beach

Common Space

Sculptural beach theme, viewed from above…..

Apartment Landscape

Beachside planting theme, to soften and complement the architecture and add interest to the streetscape level of the lane [at the rear of the site].

[In regards to the Cottage Landscape] The streetscape view of the cottage is to be closely framed with dense plantings of Kentia Palms to each side of the cottage.

14. The (ultimately) approved landscape plan, prepared by Mather and Associates dated October 2004, includes an ‘Indicative Plant Schedule’ which is essentially the same as the schedule of recommended species in the statement attached to the SEE. The landscape plan shows ten Kentia Palms in a staggered arrangement on the eastern portion of the northern side boundary between the cottage and the boundary fence. The existing Kentia Palm is shown on the southern boundary. There is a notation indicating transplanted Raphis Palms on the northern side. The plan shows three trees, two of which are identified as Banksia integrifolia and the third with no notation but which is drawn using the symbol used to denote the Banksias. The Banksias are shown roughly where trees 9 and 10 are currently planted. The unidentified tree is where tree 14 is currently growing. The plan also shows another five Kentia Palms in the southern side setback and proposed ‘formal’ hedges along the northern, eastern and part of the southern boundary fences.

15. The Heritage Impact Assessment (HIA) accompanying the Development Application and dated October 2004 notes that “There are no landscape features to be retained, although the proposal does retain the tree in the paved service area to the south of the house, and relocated several palms.” Elsewhere in the HIA, in regards to a requirement that new landscaping be sympathetic to the heritage significance of the item, it notes, “The new development will retain the side and front setbacks of the house, as well as its front garden area. These areas are to be landscaped, including the relocation of the existing kentia palms.”

16. An internal referral dated 9 March 2005 seeks comments from council’s landscape officer. The officer states that the proposed Metrosideros will be difficult to maintain as a hedge along the northern boundary. The comments also include a reference to “a cluster of Kentia Palms to rear corner of property (adjacent garage) that should be transplanted. Otherwise plan is satisfactory. (Solo Kentia along southern side of house could be better re-positioned.) The officer prepared a draft condition of consent which was ultimately adopted in the final assessment (see below).

17. In a report dated 6 February 2006 from council’s Environmental Services Division to the Land Use Management Committee, is a recommendation that council put forward conditions of consent to the Land and Environment Court so that consent orders could be entered into. The report provides the proposed conditions of consent.

18. On 17 February 2006 Manly Council approved DA 508/04 subject to conditions. Condition ANS06 states:

All existing Kentia palms (4x4m trunk, 2x 2m trunk, 1x3m trunk, 1 x 1m trunk plus solo specimens approx. 6m + trunk noted on site) are to be transplanted to the northern boundary and Metrosideros Excelsa is to be deleted. Additional Kentia specimens and understorey planting is to be include[d] so that the proposed bed is adequately planted. Cordyline Stricta is suggested as possible plant, and Dianella spp. for supplementary understorey planting.

19. Although a number of conditions were contested in an appeal to the Land and Environment Court (see Allen Jack & Cottier v Manly Council [2006] NSWLEC 288), this condition was not one of them.

20. Each party engaged a heritage expert to prepare a statement; Mr Robert Staas for the respondent and Ms Jennifer Hill for the applicants. The heritage experts attended the hearing and gave oral evidence. The parties were reminded that this evidence would only be of relevance in consideration of s 14F(f) as a consequence of s 14E(2)(a) being satisfied. However, for completeness, a record of the experts’ evidence is included below.

21. The experts agree that Kentia Palms were a common garden planting during the Late Victorian and Edwardian periods through to the 1920s and 30s.

22. Ms Hill notes that the ‘Assessment of Significance’ prepared by Clive Lucas Stapleton and Partners Pty Ltd on 22 July 2002 makes no mention of landscape, however she opines that the current vegetation on the site provides some landscape separation from the adjacent developments although in her view, complete visual separation is impossible given the six storey height of the units on lot 2. She outlines the apparent anomalies in the various documents associated with the original consent. Ms Hill notes that prior to the redevelopment, the house was seen against the sky; the erection of the six storey block to the rear significantly reduced the framing of the house by the sky. In her opinion, a suitable setting/ visual framing for the heritage item could be more appropriately achieved by replacing the existing Kentia Palms, which she states could grow to 10-14m, with Raphis Palms or similar which could be trimmed to a height of 3m – being the height of the gutter on the cottage. Ms Hill considers that this would comply with the NSW Heritage Office Publication, ’Heritage Curtilages’ in regard to vegetation, in that plantings are retained to frame or screen heritage items and contribute to their visual amenity.

23. Mr Staas states that the use of Kentia palms is entirely characteristic of the period in which the cottage was erected and that they provide an appropriately located and scaled landscape setting for the heritage listed cottage. He maintains that the palms provide a contained visual setting for the item from the public domain as well as a degree of privacy for the occupants of the cottage which is otherwise overlooked by adjoining developments. Mr Staas notes that the remnant curtilage of the heritage item is very restricted by the scale and location of the development to the rear and to the north. The area allowed for landscaping to the north and south is thus restricted however, the more important, more open, direct visual connection from the beach to the front of the property is retained. Mr Staas cites various sections of the HIA and the relevant condition of consent which, in his opinion, show the importance placed on retaining an appropriate visual separation for the house from the surrounding development through the landscape treatment, in particular the use of the Kentia Palms as a framing element. He agrees that while there may be some potential to reduce the number of palms, he opines that the retention of a significant setting is dependent on the substantial retention of the palms and the maintenance of appropriate underplanting which by the nature of the different heights and maturity of the plants provides a varied and layered landscape setting that is essential to reduce the impact of the adjoining development on the cultural significance of the heritage item.

24. Ms Pearman for the applicants contends that I should be satisfied that trees 1-14 comprise a single hedge, or at most two hedges if I consider the Raphis Palm separates the row of Kentias. She cites the decision in Wisdom v Payn [2011] NSWLEC 1012 at [45] to support her position. In that judgment the Commissioners stated:

45   We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.

25. In addressing the curvilinear arrangement and the distance between trees, trees 13 and 14 in particular, Ms Pearman also cites Preston CJ in Johnson v Angus [2012] NSWLEC 192 at [41] where His Honour states:

41 But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of the trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of trees), function and growth of the tress; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or other spatial arrangement conducive to the trees forming a hedge.

26. Apart from these cases, Ms Pearman also notes my findings in Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 and Smart & anor v Mann & anor [2013] NSWLEC 1179 in which I accepted that rows of palms could be considered as ‘planted so as to form a hedge’. She submits that the distance between the trees is reasonable given the spread of the crowns.

27. Mr Seymour for the respondent also cites Preston CJ in Johnston v Angus in regards to His Honour’s discussion of the grammatical analysis of s 14A(1)(a) that ‘planted so as to form a hedge’ has a subjective element to it. Paragraph [37] states:

37 I reject the Johnsons’ submission as to the meaning of the adverb clause of purpose, ‘so as to form a hedge’, for three reasons. First, the Johnsons’ submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be ‘trees that are planted….so as to form a hedge’. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as to form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge.

28. Mr Seymour’s contention is that the legend on the landscape plan specifically denotes some plantings as ‘proposed hedge’ and these do not include the Kentia Palms, which are designated by a triangular symbol as individual plantings. However, he accepts that it would be open for me to find that the palms could comprise two hedges with the exception of tree 14 which he submits is sufficiently distant from the others to be considered an individual specimen and therefore a tree to which Part 2A does not apply.

Findings section 14A(1)

29. Consistent with findings in other matters involving rows of palms and the generally purposive approach taken by the Court in these matters, I am satisfied that the 14 palms the subject of the two applications are trees to which Part 2A applies. Although the landscape as currently planted is not as indicated on the approved landscape plan, the palms are planted in a curvilinear arrangement and appear to have been installed in the same planting event. While the intent of whoever installed the landscape cannot be interrogated, it is clear from the landscape plan that a staggered, but generally linear arrangement was intended. For whatever reason, the two Banksias and the unidentified tree species (possibly another Banksia) were omitted and replaced by Kentia Palms. Although tree 14 is at a wider spacing than other trees in the row, it is not so radically different to warrant consideration as an individual specimen. All trees are in excess of 2.5m tall.

Section 14E(2)

30. The next relevant jurisdictional test 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.

31. Whilst 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.

32. 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 [2011] NSWLEC 1122 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.

33. If the Court determines that any or all of the trees the subject of an application are severely obstructing either sunlight or views, the Court must consider the balancing of interests inherent in s 14E(2)(b) of the Act. This in turn is assisted by consideration of the discretionary matters in s 14F; these matters must be considered before finally determining a matter.

Barnes - sunlight

34. Mr Barnes contends that the trees severely obstruct both sunlight to, and views from, his dwelling.

35. Mr Barnes owns the ground floor unit on Lot 2; the plans in the joint bundle indicate that the floor level of the ground floor unit is 700 mm above the floor level of the cottage.

36. Dealing first with the obstruction of sunlight, the window in question, ‘W1’, is the east facing set of windows/ glass sliding doors from the open plan living room onto the main balcony which directly overlooks the landscaped area on the northern and north-western portions of Lot 1.

37. In the application claim form, Mr Barnes estimates that about 50% of morning sunlight and 25% of sunlight for the remainder of the day, for about 12 hours per day on each day of the year, is lost as a consequence of the palms. Mr Barnes accepts that some obstruction of sunlight is also caused by the balcony of the unit above, by the cottage on Lot 1 and the adjoining block of units to the north.

38. The application claim form includes two photographs of the interior of the unit towards the kitchen area, one taken from the balcony and one taken from within the dining area. They are intended to demonstrate the obstruction of sunlight caused by the palms.

39. Ms Pearman contends that the window in question can only receive morning sun and is the window of the main living area. While she acknowledges that no shadow diagrams have been prepared to demonstrate the impact of the trees, she cites the findings in Knox v Love [2011] NSWLEC 1257 where the Commissioners in that matter ordered the pruning of a row of trees on the basis of obstruction of afternoon sunlight to mostly north-facing living and kitchen areas [the evidence in that case being photographs taken on 18 June at 3.00 pm]. Ms Pearman relies on the expertise of the Court to apply the principles of the movement and angles of the sun to this matter.

40. Mr Seymour maintains there is no evidence that the trees are obstructing sunlight to the nominated window; he notes the overhang of the balcony above. He also asserts that while orders may have been made in other cases, each case turns on its own circumstances and facts.

Findings – Barnes - sunlight

41. I find that the two photographs of the interior of the unit referred to in paragraph [38] are of no use in determining the severity of any obstruction of sunlight as a consequence of any of the trees the subject of the application. The photographs are undated and there is no indication as to what time of day they were taken. It is clear from some of the reflections on some of the windows and surfaces that some shadow may be cast by the trees and some by other structures. Other photographs illustrating the obstruction of views do show that some sunlight will certainly be obstructed by the palms at some time of the day.

42. According to the floor plan included in the application claim form the overhang of the balcony above is 3.2m. The respondent’s cottage is immediately to the south-east, and to the north and south are two tall unit blocks. On this basis it is very difficult to accept that the trees obstruct sunlight to the extent asserted by Mr Barnes as outlined in [37]. In Drewett v Best [2010] NSWLEC 1305 at [17] the Court accepted that the word ‘sunlight’ means ‘direct sunlight’ rather than ambient daylight.

43. While I accept that W1 is only capable from receiving morning sunlight given its ground floor location and position between other buildings, the evidence is insufficient to determine whether any or all of the Kentia Palms are severely obstructing sunlight to Mr Barnes’ window and what contribution arises from the other elements. As can be construed from Johnson v Angus at [47] an applicant has the onus of proof to establish the facts upon which their case is based. Mr Barnes has not provided sufficient evidence and this element of his application is dismissed.

Barnes - views

44. In regards to the obstruction of views, Mr Barnes nominates eleven viewing points from standing and sitting positions. Five are from standing positions on various parts of the 7 x3 m balcony and six are from sitting and standing positions in the open plan living/dining area.

45. In his application claim form, Mr Barnes states that when he purchased his property in April 2010 there were partial views of the land and ocean as the palms were about 1.2 metres tall. He states that the partial views were from the balcony as well as the living area from both sitting and standing positions. While he accepts he has a narrow viewing corridor, he maintains that the palms are now having a severe impact on the views he once had.

46. A photograph taken on 24 March 2010 [Mr Barnes purchased his unit in April 2010] from within the living room across the balcony and landscaped area adjoining the cottage shows the views towards the ocean. The trees in question are visible. As illustrated in the photograph, the view of the ocean is limited to two very small glimpses on either side of the view corridor; the central part of the view corridor is obstructed by the palms. The view available at the time of purchase appears heavily constrained by the apartment building to the north-east, the cottage to the south-east and vegetation on the adjoining property (which includes a Kentia Palm) to the north and the Norfolk Island Pines along the beachfront.

47. During the hearing, from standing positions on the balcony and from within the living room I observed filtered views of the ocean through the trees; the views to the east-north-east being more open as they were in 2010. The views though the central portion of the viewing corridor were obstructed by what is probably the group of three closely planted palms, trees 7, 8, and 9 and perhaps some of the trees to the east.

48. Ms Pearman accepts that whilst Mr Barnes did not have a panoramic view when he purchased his unit he did have a reasonable view, which is now moderately to severely obstructed by the palms which have grown significantly since 2010. Ms Pearman also argues that had the landscape plan as approved for construction been implemented, the palms would have been limited to a strip further to the east; she considers it is unlikely that the developer would have intentionally planned to block the views of the ocean from the units. She asserts that the landscape has been installed contrary to the specific condition of consent which also appears to have been based on an erroneous observation that there were other Kentia palms to be relocated.

49. Mr Seymour agrees that there is some view loss as a consequence of the palms but it is not severe. He submits that the views are across two properties and as such are inherently compromised and cannot be described accurately as ‘front’ views. As the ground floor unit, Mr Seymour argues that this is the most likely unit to be obstructed.

Findings – Barnes - views

50. 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, the second the location from which the view is seen, including views available from the whole of the property, and the third considers the use of the rooms from which the views may be affected. The Planning Principle includes a qualitative scale of impact ranging from negligible, to minor, moderate, severe to devastating.

51. In applying the relevant steps to the Barnes unit, it is accepted that the views in question are standing views of the ocean from living areas, partly across the side boundary between the site and the adjoining property to the north. Qualitatively and quantitatively I agree with Ms Pearman’s submission that that some of Mr Loveridge’s trees are causing a moderate to severe obstruction of the views in question.

52. Notwithstanding that finding, in putting Mr Barnes’ case at its highest and allowing that the obstruction is severe enough to warrant further consideration, I must balance the interests inherent in s 14E(2)(b) and relevant matters in s 14F. If the applicant’s interests are found to outweigh other matters that suggest the undesirability of interfering with the trees, then the Court can make any order it thinks fit to remedy, restrain or prevent the severe obstruction in accordance with the powers prescribed in s 14D of the Act.

53. In this regard I note that the trees were installed as a component of the development consent which allowed the construction of the applicant’s unit. While the trees may have been planted at some time after the completion of the building, they were certainly present when Mr Barnes purchased his unit in 2010 (s 14F(b)). I also note the uncontested statement in the claim form that at their current height of less than 5m, the trees are not subject to Manly Council’s Tree Preservation Order (s 14F(d)).

54. During the hearing, considerable time was spent discussing the documentation leading up to the eventual granting of development consent. Regardless of the speculation concerning its formulation, the relevant final condition of consent, ANS06 (see [18]) is what it is. The condition makes it clear that Kentia Palms were to be relocated to the northern boundary and additional Kentia Palms and other species planted so that “the proposed bed is adequately planted”. Although the landscape plan prepared by Mather & Associates in October 2004 shows a particular planting scheme which does not include Kentia Palms towards the western end of the northern boundary of the respondent’s lot, it does show other species, two (and potentially a third) of which are shown on the plans to be Banksia integrifolia with a nominated height of 10-15m and spread of 6m, to be planted directly in the main view line from the Barnes (and Unicomb) balcony(/ balconies). The landscape design statement also makes it clear that the streetscape view of the cottage was to be “closely framed with dense plantings of Kentia Palms to each side of the cottage”; the indicative planting schedule provides a height of 8-10m and 3m spread for Kentia Palms. Although it is clear that the landscape plan wasn’t precisely implemented, the imposition of condition ANS06 may have led to the replacement of Banksias with Kentias (s 14F(e)(l)).

55. The historical and cultural significance was considered by the heritage experts; both agree that Kentia Palms were commonly used during the period in which the cottage was constructed. While I do not dispute Ms Hill’s opinion that Raphis Palms may be a suitable replacement, I prefer Mr Staas’ opinion as to the value of the Kentia Palms in framing the cottage when viewed from the public domain (s 14F(f)(h)(i)).

56. The palms do limit the overlooking of part of the respondent’s property from the units to the north and from the units on Lot 2. As the palms grow, their value as a privacy screen from people using the pedestrian entrance to Lot 2, which adjoins the northern boundary, will be limited although I note that there is a hedge along this pathway. I also accept that other species may be equally effective in providing privacy to parts of the respondent’s property (s 14F(l)).

57. As considered above, the views of the ocean from the Barnes property are heavily constrained by surrounding buildings (s 14F(m)).

58. Section 14F(s) enables the Court to consider any other matters it thinks relevant in the circumstances of the case. In this case it is essential to consider the extent of the view available to Mr Barnes when he purchased his property in 2010. In McDougall v Philip [2011] NSWLEC 1280, I considered a matter in which the trees were well-established when the applicant purchased her property. The effect of the orders sought in that matter would have substantially increased the view from her property and effectively created a view that was not available to her when she moved into her property. As discussed in paragraphs [19]-[25] of that judgment, Part 2A of the Trees Act does not create a right to a view (or sunlight) that was not available when an applicant purchased their property. This was further considered in Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356.

59. In the case of Mr Barnes, as noted in [46] the photograph taken in 2010 shows that the central portion of the view from his unit was already severely obstructed by the palms. Paragraph [45] also notes Mr Barnes’ acknowledgment that he had only partial views. While those partial views may have been above the palms in 2010, on my observation those partial views are still available through and from beneath the canopies of the palms. As the palms continue to grow and shed their lower fronds, Mr Barnes’ view will improve. I am not convinced that the suggestion to replace the Kentias with Raphis Palms or similar and maintain them to a height of 3m would be of any benefit to Mr Barnes as Raphis Palms are more dense. Whilst I agree with Mr Staas that reducing the number and density of the palms would still provide the intended framing of the cottage and provide some prevention of overlooking, given my finding on the original extent of Mr Barnes’ views, these are not orders I propose to make. However, it remains an option open for the respondent to consider given that the trees are still below the height which engages Manly Council’s Tree Preservation Order. [In this regard I note the material in Ms Unicomb’s affidavit sworn in December 2015 in which there is a proposal from Mr Loveridge to remove the palms on certain terms, however those terms were deemed unacceptable by the Owners Corporation.]

60. Having given Mr Barnes the benefit of the doubt in regards to the severity of the obstruction, after considering the relevant matters in s 14E(2)(b) and s 14F, I find that on balance, the orders sought cannot be made and this element of the application is dismissed.

Unicomb – views

61. Ms Unicomb owns the first floor unit directly above Mr Barnes’ unit. This unit is larger with a more substantial balcony on the north-eastern corner. Ms Unicomb has nominated eight viewing positions – sitting and standing positions from the balcony and from within the open plan living/dining room. The application claim form includes photographs taken in October 2015 from the nominated positions. She also includes photographs taken from the balcony in January and September 2010.

62. The 2010 photographs show the view of the ocean, surf zone, sliver of sand to the east-northeast, public reserve and car park across North Steyne between the unit block to the north/ northeast and the respondent’s cottage to the southeast. The view is punctuated by two Norfolk Island Pines. The palms appear to be at the height of the eaves of the ground floor extension at the rear of Mr Loveridge’s cottage.

63. During the hearing I observed more or less filtered views of the surf zone and ocean from standing positions on the balcony and from within the living/dining room.

64. Ms Pearman contends that whilst Mr Barnes did not have a panoramic view when he purchased his property, Ms Unicomb did. In citing the Planning Principle on view sharing in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Ms Pearman stresses the fact that in 2010 Ms Unicomb had a view of the land/water interface, a view generally highly valued. Whilst she accepts that sitting views are harder to retain, the view from the front of the unit, through a limited viewing corridor is now severely obstructed from standing positions.

65. In support of her contention, Ms Pearman cites Haindl v Daisch [2011] NSWLEC 1145 at [64] where the Commissioners state:

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 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 a 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.

66. Ms Pearman presses the arguments put on Mr Barnes’ behalf in regards to the original design and subsequent installation of the landscape; that is, there wouldn’t be such a loss of amenity had it been carried out in accordance with the plans. She notes Ms Hill’s agreement that the heritage item is in a garden setting however, the intent of the vegetation is to screen the heritage item and not screen out the adjoining development. Ms Pearman asserts that removal of the Kentias would enable the planting of replacement vegetation which would achieve appropriate screening and framing but not block the applicants’ views.

67. Mr Seymour contends that the applicants purchased units in a scheme with the knowledge that it contained a heritage item and landscaping. He submits that apart from Mr Barnes’ unit, Ms Unicomb’s unit is the other unit in the complex most likely to have obstructed views. Mr Seymour argues that the view from the Unicomb property was never a panoramic view as it obstructed by the roof of the cottage and constrained by adjoining development. In regards to the Unicom unit, Mr Seymour considers that standing views are still available and there is some loss from sitting positions. Overall, Mr Seymour accepts that while the loss is upsetting, it is moderate and not severe. He maintains that should I find the impact severe enough to consider s 14E(2)(b), I should give weight to the historical and cultural significance of the palms as well as the amenity they provide both to the respondent and to the public; he notes that Manly Council has not taken any issue with any perceived failure to comply with the conditions of development consent. Mr Seymour presses Mr Staas’ opinion over that of Ms Hill who he contends did not adequately address the application to remove the trees. While he questions whether any orders should be imposed, in the alternative Mr Seymour considers that perhaps some trees could be removed but not all 14 of them. He also notes that the proposed ‘alternative’ orders do not include a requirement for the replacement of the palms.

Findings - Unicomb – views

68. On the basis of my observations noted in [63] I find that the trees the subject the application are not severely obstructing the views from Ms Unicomb’s unit. I agree with Mr Seymour that at best, the obstruction is moderate. As has been considered in many applications made under Part 2A, the legislature has set a high threshold by the use of the word ‘severe’.

69. As s 14E(2)(a)(ii) is not met, the application must be dismissed. However, as stated in Deville & anor v Frith & anor [2014] NSWLEC 1002, should the circumstances change a second application can be made.

Orders

70. The Orders of the Court in matter 21137 of 2015 are:

1. The application is dismissed.

2. Exhibit 1 is returned.

71. The Orders of the Court in 21138 of 2015 are:

1. The application is dismissed.

_______________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 01 April 2016