Bowden & anor v Grayson & anor

[2013] NSWLEC 1161

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bowden & anor v Grayson & anor [2013] NSWLEC 1161
Hearing dates:	18 July 2013
Decision date:	19 July 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; iconic views; view obstruction existed when applicant purchased the property; balance of matters at s 14F; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Interpretation Act 1987
Cases Cited:	De Zylva & anor v Staas & anor [2012] NSWLEC 1242 Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Keith Bowden and Linda Bowden (Applicants) Robert Grayson (First Respondent) Linda Grayson (Second Respondent)
Representation:	Scott Nash (Applicants) Tatijana Stancevic, PC Law (Applicants) Grant Christmas, Apex Law (Respondents)
File Number(s):	20271 of 2013

Judgment

Introduction

1. The land at Balls Head rises quickly northwards from Berrys Bay into the residential suburb of Waverton. Due to the lie of the land and the positions of dwellings, trees and other features, some houses enjoy views not available to others. The sloping land also gives rise to overlooking issues between neighbouring properties.

1. Robert and Linda Grayson ("the respondents") have lived at their property since 1996. There is only one other dwelling between theirs and Berrys Bay. They have views to the south and southeast that include Berrys Bay, Sydney Harbour and the Harbour Bridge. They have planted trees in their back garden to gain privacy from dwellings higher up to the east, in Larkin Street, and to the north, in Balls Head Road.

1. Keith and Linda Bowden ("the applicants") bought the neighbouring property to the north in September 2011. They say the Graysons' trees obstruct views from their dwelling. After failing in their attempts to reach an agreement with the Graysons regarding tree pruning, they applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for some of the trees to be pruned.

1. At the onsite hearing Mr Nash, counsel for the applicants, clarified the orders being sought. The applicants seek pruning of 27 trees (T9-T16, T19-T27 and T30-T39) to gain views from a bedroom (V1), sunroom (V2), dining room (V4) and family room (V5). They do not seek any orders regarding views from the kitchen (V3 in the application). They wish the trees to be pruned to a height of 4.5 metres and thereafter maintained at a height no greater than 5 metres.

1. The respondents do not wish to prune the trees, which they say provide privacy to their property.

Issues agreed and issues to be determined

1. The parties are agreed on the jurisdictional questions at s 14A of the Act: that the trees are planted so as to form a hedge, or in this case three hedges; that they rise to a height of at least 2.5 metres; and that they are on land in a zone to which the Act applies. Having viewed the situation I accept this to be the case.

1. The parties are also agreed on the jurisdictional questions at s 14E(1). The applicants tried to establish with the respondents an agreement for tree pruning similar to an agreement that existed between the respondents and previous owners of the applicants' property, but were unsuccessful. I accept that the applicants have made a reasonable effort to reach agreement with the respondents.

1. The respondents do not accept the applicants' contention that the trees cause a severe obstruction of a view. They say that, even if their trees do cause a severe view obstruction, the applicants are not entitled to a view they did not have previously. The respondents also do not want to lose any of the privacy afforded by the trees. Therefore, I must determine the jurisdictional test at s 14E(2)(a)(ii) regarding the severity of any view obstruction. If I find that there is a severe obstruction of views, I must also be satisfied (at s14E(2)(b)) that the severity of the obstruction outweighs any reasons there might be for not interfering with the trees. To do this I must consider a range of matters included at s 14F.

Onsite view

1. The Court relies, as do both parties, on a sketch plan provided by the respondents showing tree locations and numbers (Exhibit 3). The common boundary between the two properties runs east to west. Beginning some way along this boundary, at a point between the two dwellings, a row of 18 trees (T1-T18) extends to the rear boundary. Another row of 12 trees (T28-T39) extends along the length of the rear boundary of the respondents' land in a north-south direction. Parallel to this, several metres in from the rear boundary, another row of nine trees (T19-T27) extends most of the way across the respondents' land. The layout of the 39 trees in three hedges is such that, viewed from above, they form the letter 'F', with the stem of the F being the row along the common boundary between the two properties. The applicants contend that some, but not all, trees in all three hedges obstruct their views.

1. All the trees are on the respondents' land. They are planted at close and regular spacings. They are all of the one species: Podocarpus elatus (Plum Pine), which is native to New South Wales and Queensland. All the trees are more than 2.5 metres tall. The trees' crowns all interlock, forming a dense and continuous screen of foliage. The intent of the respondents at the time of planting and the result that now stands on their land satisfy me that the trees "are planted so as to form a hedge".

1. Seven or so of the trees near the respondents' dwelling (T2-T8) have been pruned repeatedly and are approximately 2.8 metres tall. The other 32 trees have never been pruned for height reduction and are, on average, around 8 metres tall. The trees are generally in good health.

1. Looking across the respondents' property through the side window of the applicants' bedroom (V1), part of Berrys Bay can be seen over the pruned trees; the unpruned trees obstruct any other view that may exist. This is shown in Figures 5 & 6 on page 6 of Mr Lockrey's report (Exhibit B). Mr Lockrey, a town planner who has provided expert evidence for the applicants, attended the hearing.

1. From the western end of the sunroom (V2) there are views of Berrys Bay, Balls Head, parts of the harbour, the city skyline and the southern end of the Harbour Bridge. The southern pylon of the Harbour Bridge would be visible were it not obstructed by Blues Point Tower. Trees in the hedges obstruct what other view might exist. This can be seen in Figures 7-12 on page 7 of Mr Lockrey's report (Exhibit B). The dining room (V4) and family room (V5) adjoin the sunroom. Whatever view might be available to the sunroom would be available to a lesser extent from these interior rooms.

1. We were taken to the rear of the applicants' property to observe the view that might be available were it not for the respondents' hedges. Despite Mr Nash's suggestions to the contrary, other features obstructed views of the Harbour Bridge and Opera House from here. I pointed out other trees including Banksias that might obstruct a view from the applicants' dwelling and was told that these were on a more distant property that does not adjoin the applicants' land.

1. From the respondents' dwelling we were shown issues of overlooking that would exist were it not for the trees.

Applicants' submissions

1. While acknowledging that there are some water views available from both the bedroom and the sunroom, the applicants submit that the pruning orders they seek would provide greater views of Berrys Bay and the harbour in general, would allow a view of the southern shore of the harbour, and most importantly would provide a view of the Harbour Bridge and possibly even sails of the Opera House.

1. The applicants submit that, in the absence of the view obstruction caused by the hedges, other features of the landscape would not significantly obstruct these views. As a reference point they use the top of one of the more distant Banksias referred to earlier. This Banksia is at the southern end of the group of Banksias that we observed and can be partially seen past the southernmost parts of the hedge. Mr Lockrey pointed out from the western end of the sunroom that the part of the Banksia that could be seen did not obstruct the view of the southern part of the Harbour Bridge. He contends that the Banksias are sparser than the hedge trees and would allow views through their crowns. The applicants contend that the rising land mass to their east would not obstruct views of the Harbour Bridge.

1. Based on measurements taken during the onsite view, the applicants submit that maintaining the hedge trees below a height of 5 metres would be in line with the tops of the Banksias and would allow capture of the views described above.

1. Mr Nash took us to Tenacity Consulting v Warringah Council [2004] NSWLEC 140, which he says gives examples of iconic views such as the Harbour Bridge and Opera House. Mr Nash argues that, due to the iconic nature of these views, they can and should be considered individually, and that such consideration is therefore different to the "slicing up" of an overall view described by the Senior Commissioner and Acting Commissioner in Haindl v Daisch [2011] NSWLEC 1145 at 26. He points out that Fakes C made orders to restore such iconic views in Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107, despite the applicants enjoying other views from their dwelling. He says that, despite the other views available from the applicants' dwelling here, such as Berrys Bay and the harbour, they are missing the iconic part: the Harbour Bridge, which he says is the most prized view in Sydney. He says that, due to the density of the hedges' foliage, the loss of this iconic view is 'devastating', the highest degree of obstruction described by Roseth SC in Tenacity. He says that, as the view obstruction is severe or worse, the Court's jurisdiction is engaged under the Act.

1. Mr Nash took us to Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355 where, at 49, he says the Court recognises the need to protect views.

1. The applicants submit that their dwelling predates the planting of the trees. They say that the sunroom, too, was created well before the trees were planted, when it was converted from a verandah.

1. The applicants submit that the pruning orders they seek would sufficiently retain the respondents' privacy. Mr Lockrey first stated that pruning to 5 metres would maintain the respondents' privacy. Subsequently he stated that such pruning may only maintain privacy to their back garden but, as the dwellings upslope to the east, in Larkin Street, are more than 12 metres away from the respondents' dwelling, general planning principles would not require screening between the dwellings.

1. The applicants submit that the previous owners of their property had an agreement with the respondents regarding pruning of some of the trees to maintain views.

1. The applicants contend that, while the trees provide some privacy, they otherwise have no notable value. They say any landscape or scenic value offered by the trees would not be lost as they are only seeking orders for pruning, not removal.

1. The applicants argue that Tenacity supports the principle of view sharing. They say that, as the iconic views are available to the respondents, the respondents have a responsibility to ensure they are available to others.

Respondents' submissions

1. The respondents submit that the applicants have a view, from parts of the sunroom and adjoining rooms, of Berrys Bay, the harbour and the city. This view is available across the trees that have been pruned in the past.

1. The respondents dispute that the view loss is severe, saying it does not meet the dictionary definition of the word as described by Fakes C in De Zylva & anor v Staas & anor [2012] NSWLEC 1242 at 31. They argue that, in Haindl v Daisch [2011] NSWLEC 1145, the Court has not allowed slicing up of a view into various segments, and therefore the Harbour Bridge should not be considered separately here to the remainder of the view.

1. The respondents do not accept that the proposed pruning would open up the view as claimed due to the presence of other obstructions. They say there is no evidence that the previous owners ever had views of the Harbour Bridge.

1. The respondents submit that, as the bedroom is not a living room, the view from there should not be considered. They say only the view from the sunroom should be considered. They say also that there should be no consideration of future views from an as yet unbuilt dwelling.

1. The respondents point out that the plans for a new dwelling on the applicants' property, submitted to Council by the applicants, mention potential views of the Harbour Bridge from a level higher than the existing dwelling, but not from the level that corresponds with the existing level of the sunroom. They say this indicates that the view is not available from this level.

1. The respondents submit that the trees were planted around 1998 for privacy, and that reducing the trees by any more than one metre would result in a loss of that privacy. They say the trees prevent overlooking from the Larkin Street properties to the east. They point out that the back of their house can be seen from the applicants' dwelling and that pruning would allow greater overlooking of their dwelling from the applicants'.

1. The respondents submit that, as pointed out in Tenacity, it is unrealistic to expect views across side boundaries.

1. The respondents submit that the applicants have only owned their property since September 2011 and were well aware of the extent of the view at the time they purchased, as a result of inspecting the property and, furthermore, having lived at the adjacent property further up the hill. They say it would be unreasonable to give them a view that they did not have previously, especially when considering the balance of privacy issues.

1. The respondents submit that the applicants, in their application to Council for construction of a new dwelling, asserted that the hedges provide privacy and that retention of the trees at a height of 7 metres would prevent overlooking from their new dwelling.

1. The respondents contend that the proposed pruning would have a severe impact on the trees, as they would be cut in half. They say the Court considered this in Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355. They argue that the contribution of the trees here is at a higher level than in Fardouly.

1. The respondents submit that the applicants' dwelling is unoccupied, has been so since they purchased it, and may remain so until it is demolished. They say a separate application would be needed for any view loss from a future dwelling.

Is there a severe obstruction of a view?

1. I accept that the Harbour Bridge is an iconic view, and that views of it and of the harbour are of high value. Following on from Ridley, I accept that such an iconic view can be considered separately from the remainder of the view. Considering the applicants' submissions along with my own observations, I am satisfied that the obstruction of views from the applicants' dwelling is possibly severe, meeting the jurisdictional test at s 14E(2)(a). However, consideration of the matters at s 14F is required before I can be satisfied of the further jurisdictional test at s 14E(2)(b).

Matters to be considered by the Court

Section 14F(a)

1. The trees are all located on the respondents' land. Trees T1-T18 are along, and very close to, the common boundary of the two properties. Trees T1-T11 are close to the southern side of the applicants' dwelling.

S 14F (b)

1. According to the respondents the trees were planted around the time their dwelling was built in 1996. The applicants' dwelling predates the trees. Furthermore, the parties agree that the apparent closing in of the verandah to create a sunroom (V2) was done well before the trees were planted.

S 14F(c)

1. The trees were already greater than 2.5 metres in height when the applicants purchased their property. The evidence of the applicants' expert Mr Lockrey, town planning consultant of Lockrey Planning & Development Solutions, is that in 2011, the year they purchased the property, the trees were 7 metres tall. He relies on a survey taken at that time.

S 14(d)

1. Interference with the trees would not otherwise require any consent or authorisation under other acts.

S 14F(e)

1. The respondents introduced into evidence (in Exhibit 2) North Sydney Council's report on the Development Application made in 2012 for the construction of a new dwelling on the applicants' land, along with the Construction Certificate Plans for the dwelling. There was no suggestion that the Court is being asked to consider views from the proposed dwelling, nor does the Court intend to do so. Also in evidence (in Exhibit 1) is a report by Mr Lockrey regarding the Development Application. That report addresses issues of overlooking to the respondents' property from the proposed dwelling by referring to retention of the 7 metre high hedge.

Ss 14(f)-(i)

1. The trees have no significant historical, cultural, social, scientific or environmental values. They do not contribute greatly to public amenity, although they do contribute to the scenic value of the respondents' land.

S 14(j)

1. I accept the respondents' submission that the trees have helped reduce moisture problems in their garden.

S 14(k)

1. Bringing my own arboricultural expertise to the matter, in the absence of any arboricultural evidence adduced by either party, I find that pruning as proposed by the applicants would have a significant and adverse effect on the trees. Most of the trees have never been pruned and have stem diameters of 10 cm or more at a height of 5 metres. The large wounds left by such pruning are undesirable. Furthermore, much of the attractive appearance of the trees would be lost - they would no longer have their natural form, while at the same time lacking the more formal appearance of a hedge that has been maintained as such from the outset. While the trees would tolerate less severe pruning, that would not assist the applicants' wishes for obtaining iconic views.

S 14(l)

1. The trees contribute significantly to the respondents' privacy. I accept their submissions that the proposed pruning would result in a loss of much of this privacy, causing overlooking from dwellings in Larkin Street and from the applicants' dwelling.

S 14(m)

1. It has not been clearly demonstrated, either in evidence presented or at the onsite view, that the view of the Harbour Bridge from the applicants' dwelling would not be obstructed by other features. Other vegetation and the land mass itself may partly or entirely obstruct that view. The onus to satisfy the Court of this matter lies with the applicants.

S 14(n)

1. I accept that the applicants have attempted to reach some agreement with the respondents.

S 14(o)

1. The application does not concern an obstruction of sunlight.

S 14(p)

1. The trees are evergreen. Any obstruction they cause is year-round.

S 14(q)

1. As stated above, it is not clear if views of the Harbour Bridge would be available to the applicants if the trees are pruned. Nevertheless, from their sunroom they have water and city views.

S 14(r)

1. V1 is from a bedroom. V2 is from the sunroom. V4 and V5 are internal rooms. None of the rooms is presently occupied.

S 14(s)

1. I consider it relevant that the applicants' dwelling is unoccupied. The respondents' uncontested contention is that it has been so since they purchased it. This does not rescind the Court's jurisdiction, but is to be considered in the balance of issues.

Balance of matters to be considered

1. The potential benefits to the applicants of the orders being sought must be weighed against the potential impacts of these orders on the respondents. While the Trees (Disputes Between Neighbours) Act 2006 lists the matters that must be considered at s 14F, it is largely silent on how those matters are to be considered. According to s 34(2) of the Interpretation Act 1987, the Court can refer to a limited range of extrinsic material for assistance and clarification regarding the meaning of a provision of an Act. This course has been taken previously by the Court, for instance by Fakes C in McDougall v Philip [2011] NSWLEC 1280. Here I refer to the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) by the Department of Justice and Attorney General. In the conclusions on page 35 of the review, it was recommended that the Act would have several restrictions in matters regarding hedges. (I have emphasised the fourth bullet point in bold type.)

The Court would only have the power to hear matters regarding:

• hedges which are both high, and similar to a wall in their visual effect.
• hedges which affect people's homes (rather than their gardens or other structures on their property).
• cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if 'enjoyment of property has been severely affected by a neighbour's trees blocking out sunlight' or 'enjoyment of property has been severely affected by a neighbour's trees blocking out a view'.
• cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase.
• hedges which are directly next door (not one or two properties over).

1. I refer to the fourth bullet point above. I note that the recommendations of the other four bullet points are strongly reflected in the Act. Although there is nothing overtly in the Act to prevent the Court making orders to open up a view to which the applicant has not previously had access, the background material in the 2009 review suggests that this is a matter that should be given substantial consideration when balancing the applicants' interests against any adverse impacts on the respondents.

1. The applicants have not previously enjoyed Harbour Bridge views from this property. The orders they seek are for obtaining views rather than restoring a view that has been lost. The applicants clearly knew of the view obstruction at the time of purchase. The applicants took me to Fardouly, at 49, where trees were found to obstruct high-value views. I note that the same paragraph emphasises the fact that Mr Fardouly had shown to the Court's satisfaction that he had "once enjoyed uninterrupted views" and "his family had once enjoyed the view without any obstruction". Here, on the other hand, the applicants make no such claim and repeatedly use language such as "obtaining" the view and "capturing" the view.

1. I am also not sufficiently satisfied, based on the evidence and observations at the site, that views of the Harbour Bridge would be obtained to the extent claimed by the applicant. There are other elements in the landscape that may contribute to the obstruction. I noted the Banksias on neighbouring land. Although these were addressed by Mr Lockrey I also note that he used the small part of a Banksia at the southern end of the trees as an example. Other Banksias, which could not be seen from the applicants' property as they are behind the hedges, are to the north and further upslope. They are likely to cause a greater obstruction than the lower one. The applicants' evidence included several photographs (in Exhibit E) taken from their dwelling some years ago, provided by the daughter of the previous owners. Those photographs show views of Berrys Bay, part of the city skyline and small portions of the harbour. The Harbour Bridge is not shown in any of these photographs, surprisingly for such an iconic feature if it could be viewed at that time. Vegetation that may be the hedges or other vegetation further distant can be seen in some of the photographs.

1. The respondents planted the trees for privacy. The applicants have relied on the trees at their current height in their development application when addressing concerns regarding overlooking. The respondents rely on the two north-south rows for privacy from the higher dwellings to the east. While they may not have a right to preserve such privacy, their desire to maintain it is one that I can consider when weighing the benefits and costs of pruning the trees.

1. I also note that there is no halfway measure. Pruning the trees to the extent sought by the applicants would remove most of the privacy enjoyed by the respondents. Any attempt to compromise, allowing a greater height for the respondents, would definitely not provide the applicants with a view, were one available.

1. Reducing the trees to 4.5 metres would be almost halving their height. The height of most of the trees has not been limited by pruning in the past. Many of the trees have stem diameters greater than 10 cm in diameter at that height. This is likely to adversely affect their health, shorten their life expectancies and leave them looking unattractive.

Conclusions

1. If orders are made in an attempt to obtain a view for the applicants, the loss of privacy to the respondents would be significant, as would the impact on the trees' form and viability. Even if these impacts could be lessened, it is not clear that the view would be gained to the extent claimed by the applicants. Should it be possible to gain that view, it is nevertheless one that has not been available to the applicants during the time they have owned (but never occupied) their property. Considering these matters, I am not satisfied, as required by s 14E(2)(b), that the applicants' interest in having the trees pruned outweighs the adverse impact to the respondents.

Orders

1. As a consequence of the foregoing, the orders of the Court are:

(1)   The application is dismissed.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 26 August 2013