Doerner v Vincent

[2015] NSWLEC 1186

Land and Environment Court

New South Wales

Medium Neutral Citation:	Doerner & anor v Vincent [2015] NSWLEC 1186
Hearing dates:	27 May 2015
Date of orders:	27 May 2015
Decision date:	27 May 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; views and sunlight; not a severe obstruction
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Applicants: Mr R Doerner and Ms L Dixon Respondent: Ms J Vincent
Representation:	Applicants: Litigants in person Respondent: Litigant in person
File Number(s):	20127 of 2015

Judgment

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

1. COMMISSIONER:   The applicants have applied under s14 B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the pruning to 3m of a row of trees growing on an adjoining property. The orders are sought on the basis that the trees are severely obstructing views of the ocean from their dwelling and sunlight to the windows of a bedroom. The applicants are also concerned that the trees will continue to grow and further obstruct their views.

2. The respondent values the trees for the privacy they afford the family’s swimming pool and backyard.

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

4. Section 14A(1) states that Part 2A only applies to groups of two or more trees planted so as to form a hedge and which rise to a height of 2.5m. The trees in question are a row of closely planted Leyland Cypress trees which have been clipped into a rectilinear form. They are more than 2.5m tall. Therefore, I am satisfied that the trees the subject of the application are trees to which the Part applies.

5. Section 14E(1)(a) requires an applicant to have made a reasonable effort to reach agreement with the owner of the trees in question. On the basis of the material tendered by both parties, I am satisfied that this has occurred.

6. The key test in applications made under Part 2A 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.

7. While 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.

8. 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.

Views

9. The applicants have nominated five viewing locations from which they contend the views are, or could be, severely obstructed by the respondent’s trees.

10. 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 scale of impact ranging from negligible, to minor, moderate, severe to devastating.

11. The Court has also considered the meaning of ‘a view’ in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state:

26   However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

12. In a number of decisions, the Court has considered the dictionary meaning of ‘severe’. Perhaps the most apposite to ‘hedge’ cases is the word ‘extreme’. Thus the legislature has set a high bar in using the word ‘severely’ in Part 2A of the Trees Act.

13. Viewing points 1 and 2 (V1 and V2) are from the east-southeast facing windows of the applicants’ open plan dining/kitchen area on the upper level of their dwelling. Viewing point 3 (V3) is from the kitchen through those windows. The trees in question are below these windows and have grown to about 200 mm above sill height.

14. It was clear on the day of the hearing that there is only a minor obstruction of otherwise expansive ocean views from those viewing points as a consequence of the respondent’s trees.

15. Viewing point 4 (V4) is from the paved terrace adjoining the open plan dining/kitchen area. The view of the ocean is partly constrained by the several of the trees as well as by the external laundry on the applicants’ property. There remains an unobstructed portion of the view of the ocean but the overall opportunities for expansive views are limited by the size and location of this part of the applicants’ dwelling. Approximately 50% of the potential ocean view is obstructed by the trees.

16. Viewing point 5 is nominated for both the terrace off the pool at the southern end of the southern end of their property, and for the north-north-east facing window of the external laundry. The opportunity for views from the pool terrace are similar to those from V4 – constrained by the laundry and the respondent’s trees, however, as for V4, the obstruction is not severe. Given the location of the pool terrace, views of the ocean are only available from limited positions. The view through the small laundry window enables a clear view along the cliffs of Dover Heights and across to North Head in the distance; the land/water interface is easily seen. The view is only partially limited by the trees.

17. In considering the impact on the views from viewing points V1,V2, V3 and the laundry window V5, the impact is negligible to minor and not severe. While the view loss from the terrace areas of V4 and V5 are moderate, those viewing locations are constrained by other factors. It was observed during the hearing that the applicants have the benefit of generally unobstructed views of the ocean and cliffs from the open plan living room that adjoins the dining/kitchen area.

18. As the trees concerned are not severely obstructing a view from the applicants’ dwelling, s 14E(2)(a)(ii) is not met and the Court’s jurisdiction to make orders is not engaged and this element of the application is dismissed.

Sunlight

19. The applicants claim that before the trees grew above the dividing fence, early morning sunlight used to stream through the east-southeast facing windows of a bedroom on the lower level of their dwelling (the room beneath the dining room).

20. As no shadow diagrams or any other evidence was adduced, a more intuitive approach must be taken using the orientation of the windows and their position relative to the trees and other structures that may impede sunlight to them.

21. The timber dividing fence is set back approximately 1-2 m from the windows; it sits on a small retaining wall. A photograph from the door of the room included as Annexure 1 in the application claim form shows the fence blocks all but the upper 20-25% of the windows. The trees are currently about a metre or so above the fence.

22. While the trees will contribute to some obstruction of sunlight to these windows, given their orientation it is likely that they would only be capable of morning sun in summer and that at the equinoxes, and in mid-winter, the morning sun would be obstructed by the respondents’ two-storey dwelling which is to the east/ northeast of the applicants’ property.

23. Taking all matters into consideration, in regards to the sunlight claim, I find that s 14E(2) is not satisfied in the applicants’ favour and this element of the application is dismissed.

Orders

24. As a consequence of these findings, the Orders of the Court are:

1. The application is dismissed.

__________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 28 May 2015