De Jesus Sampaio v Rajaratnam

[2020] NSWLEC 1116

Land and Environment Court

New South Wales

Medium Neutral Citation:	De Jesus Sampaio v Rajaratnam [2020] NSWLEC 1116
Hearing dates:	27 February 2020
Date of orders:	27 February 2020
Decision date:	27 February 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	Refer to Orders at [35]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – severe obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Jose Manuel De Jesus Sampaio (Applicant) Kumar Rajaratnam (Respondent)
Representation:	Mr De Jesus Sampaio (Litigant in person) (Applicant) Mr Rajaratnam (Litigant in person) (Respondent)
File Number(s):	2019/355540
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: Mr De Jesus Sampaio submitted an application, pursuant to section 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), on the basis that a hedge in his adjacent neighbour’s property severely restricts views. He also claimed that it severely blocked sunlight to a window.

2. Mr De Jesus Sampaio occupied his property in Bundeena in late 2016, at which point a row of seven Lilly Pilly’s (Syzygium sp) (the trees), planted about five years ago by Mr Rajaratnam, the respondent, had attained a height lower than the applicant’s balcony balustrade. Since then, the trees have grown to a height of about six metres.

The onsite hearing

3. The hearing commenced with an inspection in Mr Rajaratnam’s rear yard. The trees are characterised by dense foliage in their upper canopies, and are planted close together in a row about six metres long, parallel to and within one metre of the common side boundary. This boundary extends from the south-east at the front towards the north-west.

4. A Pittosporum is positioned near the north western end of the trees, and there is one live and one dead Banksia, each probably self-sown, growing in amongst the Lilly Pilly’s and protruding towards the respondent’s property. Neither the Pittosporum, not the two Banksia shall be considered part of the hedge.

5. From Mr De Jesus Sampaio’s upstairs living room (V2) and adjacent balcony veranda (V1), the trees block views towards Port Hacking, including prized views of the sunset over water to the west. The trees are sufficiently close to the applicant’s property that they are likely to bash against the side of his dwelling during heavy winds, as Mr De Jesus Sampaio noted.

6. The Court assembled in the respondent’s garage for submissions. Both parties were self-represented.

The applicant’s case

7. Mr De Jesus Sampaio seeks orders for the trees to be pruned, and subsequently maintained “at 2.5 metres height as per the Trees Act 2006 Number 126”, so that he regains water and district views that were available when he occupied his dwelling in 2016. He submitted that he simply wants the views back that he had at the time of purchase.

The respondent’s position

8. Mr Rajaratnam resists pruning any height from the trees but has given permission for the applicant to prune lateral branches which encroach towards his dwelling. He emphasised his desire to retain the existing hedge for privacy. Mr Rajaratnam noted that he held an approved development application (DA) for a two storey dwelling to replace an existing bungalow located near the waterfront, and that once built, this new house would block views currently obstructed by the trees. He suggested that any relief to the applicant’s view obstruction would thus be temporary, should the height of the trees be reduced.

9. Additionally, Mr Rajaratnam submitted that various other trees, located in the properties of nearby neighbours, would also block water views in the absence of the existing proximal obstruction, again reducing or nullifying any benefit from pruning height from the Lilly Pilly’s. He noted that he believed that the trees would be self-limiting in height, particularly as they were growing above a rock shelf.

Jurisdictional requirements

10. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].

Do the trees form a hedge?

11. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?

12. Section 14A(1) states:

14A Application of Part

(1) This Part applies only to groups of two 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).

13. Mr Rajaratnam submitted that he planted the trees about five years ago, during the occupation of the previous owner, and following the alleged poisoning of Banksias which had grown in this area.

14. The trees currently reach a height of about six metres, and therefore s 14A(1) is satisfied.

15. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

14B Application to Court by affected land owner

...

(a) Sunlight to a window of a dwelling situated on the land, or

(b) Any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

16. As is not uncommon with many tree disputes, negotiations between the parties have been protracted and at times unpleasant. Nonetheless, Mr De Jesus Sampaio has satisfied the requirements under s 14E(1)(a) to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. He has sent multiple emails to Mr Rajaratnam requesting pruning of the trees, and proposed a mediation process conducted under the guidance of a Community Justice Centre. All his approaches have been rejected by Mr Rajaratnam.

17. Mr De Jesus Sampaio has also satisfied the requirements under s 14C with respect to providing at least 21 days’ notice of his application for order to be given to owners of affected land.

18. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedge.

19. Section 14E(2)(a)(ii) states:

14E Matters of which Court must be satisfied before making an order

…

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land.

20. The applicant’s residence is located to the north-east of the respondents. Both parties’ dwellings face the road to the south-east, but their rear living areas are designed to capitalise on an arc of views towards Port Hacking, from the north through to the south-west.

21. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).

22. The first three steps of the four step process in Tenacity are considered relevant to Part 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

23. In applying this principle to this context, the optimum view towards the water of Port Hacking possibly available from V1 and V2 spans about 120 degrees.

24. From V1, looking directly towards the rear of Mr De Jesus Sampaio’s property, the presence of Mr Rajaratnam’s one story waterfront bungalow and the large two storey dwelling of his north-eastern side neighbour, provides Mr De Jesus Sampaio with only a narrow partial water view.

25. The presence of this dense hedge in close proximity to the applicant’s dwelling obstructs water views, from both a sitting and standing position, through an arc of more than 90 degrees from V1 on the balcony and V2 inside the house. Both these spaces are considered living areas under the Act. This obstructed view includes the sunset over the water, and the interface between land and water.

26. Mr Rajaratnam submitted that other trees in neighbouring properties in the mid distance would also block the water views, but their canopy form, density and considerable distance from the nominated view-points is such that extensive water views are available between and through these trees, in the absence of the hedge. Mr Rajaratnam further suggested that the hedge trees are “self-limiting in height particularly with the rock surface” on which he claims they are growing. I understood this to mean that they have attained their maximum potential height, but I am not satisfied that this is so.

27. Mr Rajaratnam’s contention that he held an approved DA for a two storey dwelling to replace his existing bungalow located near the waterfront, and that this new house would block views currently obstructed by the trees, is not relevant to this analysis. The language of s 14B is coined in the present tense, and thus relates to the conditions present on the day of the hearing, without consideration of any changes that may occur in the future.

28. Notwithstanding that views across side boundaries are more difficult to protect than views from front and rear boundaries, all other aspects of the Tenacity principle on view sharing are met in this situation.

29. Therefore, though the Court sets a high bar when considering the word 'severe', I am satisfied that (a) the seven trees in the hedge (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and thus the Act is engaged.

30. Mr De Jesus Sampaio also made a claim under s 14E(2)(a)(i) for orders based on the obstruction of sunlight to window 1 (W1). This claim does not have merit, however, as this room is positioned on the lower floor of the house and is a studio/office rather than a living area. Regardless of this, only one element of the application needs to be satisfied for the case to progress.

31. As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

14E Matters of which Court must be satisfied before making an order

…

(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.

32. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:

1. The hedge is located in the respondent’s property parallel to and close to the common boundary, and the applicant’s adjacent residence.

2. The trees were planted prior to occupation by the applicant.

3. The trees have grown to their current height of about six metres since that time.

4. The trees are likely protected by Council’s Tree Management controls under its Development Control Plan, though permission may not be required to prune the hedge to the extent required to remedy the severe view obstruction.

5. The DA approval for the future construction of a new house on the respondent’s property is not relevant under Part 2A of the Act.

6. The trees do not have any historical, cultural, social or scientific value that is worthy of consideration.

7. The hedge is likely to make a minor contribution to biodiversity, as a potential source of food and perhaps habitat for native fauna.

8. The trees provide a negligible contribution to the natural landscape and scenic value of the land on which they are situated or the locality concerned.

9. The trees are not of such a size or in a sufficiently prominent location to make a marked contribution to public amenity.

10. This genus can normally be pruned relatively often to maintain height without unduly affecting their health or function. Such pruning may result in more regrowth in the lower canopy, and thus enhance the hedge’s utility for the respondents.

11. Being on the upper level, the applicants’ veranda and rear living area overlooks the respondent’s rear yard, and the hedge contributes to providing privacy for the respondent. It also adds to garden design and landscaping value of the garden.

12. Though there are other trees in both the respondent’s rear yard, and other neighbours’ properties, which are restricting the applicants’ view, they are much more distant than this hedge, and their form is such that they would allow filtered views through their canopies. In the absence of the hedge, these other trees would frame water views, rather than block them entirely. Again, s 14F(12) relates to consideration of the past or present tense, reinforcing that consideration of any future dwellings is not appropriate under Part 2A of the Act.

13. Neither the applicant nor the respondent have taken action to prevent or rectify the obstruction.

14. The hedge is evergreen.

15. The obstructed view includes water, beaches and bushland, available between well separated houses, and through the canopies of other trees in the mid distance. The height, density, and close proximity of the hedge results in these views being almost entirely restricted, except for a narrow segment to the rear of the applicant’s land, between two houses.

16. The views are obstructed from the applicant’s upper level living area and adjacent veranda.

Conclusion

33. Pruning of the hedge will be ordered so that the water and district views are regained for the applicant, while retaining most of the hedge’s benefits of privacy and landscape amenity for Mr Rajaratnam. This will result in little loss of amenity for the respondents, and significant benefit for the applicant.

34. When an application is successful, the cost burden for carrying out orders normally falls on the respondent, and there is no reason to vary this convention here. Mr Rajaratnam has had ample time and opportunity to address his neighbour’s reasonable concerns, but has chosen not to.

Orders

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

1. The application is granted.

2. Within 45 days of these orders, the Respondent must:

1. Prune the two Syzygium (Lilly Pilly) trees (T6-7) at the south-eastern end of the hedge down to a height horizontally in line with a point two metres above the applicant’s rear balcony floor.

2. Prune the remaining five Syzygium trees (T1-5) in the middle and north-western end of the hedge (to the north west of the end of the respondent’s dwelling) down to a height horizontally in line with a point 700mm above the applicant’s rear balcony floor.

1. During the subsequent October and April of each year, the respondent must prune T6-7, to a height sufficiently low such that they never grow above a height horizontally in line with a point 2.3 metres above the applicant’s rear balcony floor.

2. During the subsequent October and April of each year, the respondent must prune T1-5, to a height sufficiently low such that they never grow above a height horizontally in line with a point one metre above the applicant’s rear balcony floor.

4. The work required under Orders 2 and 3 must be carried out:

1. At the expense of the Respondent.

2. Using the services of a suitably qualified and experienced arborist or horticulturist (minimum AQF level 3) with all appropriate insurances; and in accordance the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

5. The applicant is to provide all reasonable access to the respondent’s contracted arborist or horticulturist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 48 hours prior to the works commencing.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 30 April 2020