Donkersley v Antolovich

[2019] NSWLEC 1445

Land and Environment Court

New South Wales

Medium Neutral Citation:	Donkersley v Antolovich [2019] NSWLEC 1445
Hearing dates:	14 August 2019
Date of orders:	12 September 2019
Decision date:	12 September 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The orders of the Court are: (1)   The application is granted. (2)   During October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that: (a)   Trees T2–T12 (trees north of the banksia T13) are no taller than 2.5 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant; (b)   Trees T14–T17 (trees south of the banksia T13) are no taller than 4.0 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant. (3)   Each year the respondents are to give the applicant one week’s notice of the pruning works. (4)   Each year the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of view – whether the trees are severely obstructing a view – privacy – whether the trees’ height is a condition of a Development Consent
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Robert Leslie Donkersley (Applicant) Alexander Leon Antolovich (First Respondent) Natalie Antolovich (Second Respondent)
Representation:	Counsel: R Donkersley (Litigant in person) (Applicant) J Doyle (Respondents)   Solicitors: Connor and Co Lawyers (Respondents)
File Number(s):	2019/73737
Publication restriction:	No

Judgment

Background

1. Sailors Bay separates Northbridge and Castlecrag in Sydney’s inner north, with Northbridge Marina nestled in its most western arm. The landscape rising up on all sides of the water here is dominated by native trees. The amenity for any dwelling here is enhanced by the bushland character of the landscape and the water views.

2. Robert Donkersley (‘the applicant’) and Lesia Donkersley have lived in Northbridge on the southern side of the bay since 1991. Their north-facing dwelling has water views. On the neighbouring property to their east, Alexander and Natalie Antolovich (‘the respondents’) have planted hedges of lilli pilli and cypress trees along their boundaries.

3. For several years, the Donkersleys have tried to negotiate with their neighbours to have the hedges pruned to restore views they have lost due to these trees. Mr Donkersley applied to the Court in March of this year, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the hedge of lilli pillies to be pruned and the hedge of cypress trees to be removed.

4. Mr Donkersley also applied for orders for a large Angophora to be pruned, as large dead branches overhung the Donkersleys’ pool. Since the application was made, the Antoloviches pruned the Angophora. At the hearing, Mr Donkersley thought the tree was unlikely to cause injury in the near future, and was reassured by the Antoloviches that they would have the tree pruned regularly to prevent large deadwood falling, so he did not press the Part 2 element (damage or injury) of his application.

5. The Antoloviches filed proposed alternative orders for the application to be dismissed with costs.

Matters to be determined

6. For the reasons described above, only the Part 2A application needs to be determined. Although the Donkersleys are also concerned about the trees obstructing sunlight, their Part 2A application only addressed the obstruction of views, so it is only this element that needs to be determined.

7. It is not disputed that the applicant has made reasonable effort to reach agreement, nor that the trees are planted to form hedges more than 2.5 metres tall. According to s 14E(2) of the Trees Act, I must determine the following questions:

• Do the trees cause a severe obstruction of a view from the applicant’s dwelling?

• If so, do the applicant’s reasons for wishing to prune the trees outweigh the respondents’ reasons for wanting to maintain them at their current heights?

8. If I need to determine the second question, a range of matters set out at s 14F of the Trees Act must be considered.

The situation

9. These properties have long gardens extending downslope to the water. The Donkersleys’ dwelling looks over the landscape and water. The view includes gardens and trees, the bay and Northbridge Marina, and the landscape across the water.

10. The Donkersleys’ dwelling is close to the common boundary they share with the Antoloviches. Due to the steepness of the land they have an inclinator between their dwelling and the boundary, providing access from the street above, down to the rear of their dwelling. The Antoloviches’ dwelling is higher up the slope, adjacent to the Donkersleys’ front garden, while their terraced back garden and pool are adjacent to the Donkersleys’ dwelling. The Antoloviches planted the hedges to provide some visual screening between the two properties.

The trees

11. The cypress hedge, made up of approximately ten trees, extends from the rear of the Antoloviches’ dwelling, reaching halfway along the Donkersleys’ dwelling. The trees are more than 6 metres tall. From there, the lilli pilli hedge, made up of some 15 trees, extends downslope past the Donkersleys’ dwelling. The northern part of the lilli pilli hedge is 3–4 metres tall, while the southern part further upslope is approximately 6 metres tall. The trees have been pruned in the past to be maintained as a hedge.

Is the view obstruction severe?

12. The Donkersleys’ dwelling has three levels: bedrooms on the upper level; living room, kitchen and study on the ‘ground’ level; and a living room on the ‘lower ground’ level.

Obstruction by the cypress trees

13. The only view obstructed by trees in the cypress hedge is from the study on the ground floor. The trees obstruct a view through the study’s glass door, but they are atop a retaining wall, which obstructs the view anyway. Standing at the door, the view obstruction could perhaps be regarded as severe, but I would not make orders here for the following reasons: the room is a study, not a high-use living room; from the desk in the study, where one might spend time in this room, the retaining wall is visible and the trees have no significant impact; and the trees only impact the view when one stands at the door, while there is no reason to spend any length of time there. Therefore, the element of the application seeking orders for the cypress trees is dismissed.

Obstruction by the lilli pillies

14. The lilli pillies are planted closely, their intertwining foliage forming a screen. Their tops have been pruned recently.

15. The Donkersleys submitted that their view is obstructed by the lilli pillies, especially from the ground floor living areas. They regard the obstruction as severe. Although they acknowledged that the obstruction from the bedrooms on the upper level is not severe, they are concerned this will change with further growth. They took me to the upper level where I was able to see the available view.

16. The Donkersleys submitted that, although they still have views of bushland, it is the views of the marina and its boats that they treasured most, and which they have now lost from their living areas.

17. Mr Doyle submitted that the view obstruction is not severe. Mr Doyle referred to Haindl v Daisch [2011] NSWLEC 1145, pointing out that the Court has previously found that it is the totality of the view that must be considered, not individual slices of the view.

18. Mr Doyle argued that, even if the Court found a severe view obstruction, consideration of other matters such as those at s 14F should lead the Court not to make orders. He submitted that the respondents’ wishes for privacy outweigh the applicant’s views; the principal view is to the north; the view is obstructed by other features; and that the height of the lilli pillies is a development consent condition. Mr Doyle submitted that the respondents will maintain the trees at their current heights.

19. Having observed the various views and considered the submissions, I find that that the applicant’s views from the upper level and lower ground level are not severely obstructed by the lilli pillies, but the view from the living area on the ground floor is severely obstructed by the lilli pillies.

20. The view from the rumpus room and outdoor terrace on the lower ground level is only partly obstructed by the lilli pillies. Views would naturally be less extensive here due to the lower level. Other features contribute to the view obstruction, including a large pillar of the Donkersleys’ dwelling.

21. The lilli pillies do not obstruct the view from the upper level.

22. From the ground level living room, kitchen and rear deck, the lilli pillies obstruct the view to varying extents. Their impact on the view from the kitchen is minor, as the kitchen is on the western side of the dwelling, farthest from the trees. From the living room and deck, the water view downslope to the north is partially obstructed by large native trees. The water view to the northeast, including the boats in the marina, would be significantly more open if not for the lilli pillies.

23. Large native trees that obstruct other parts of the overall view are more integral to the broader landscape, while the lilli pillies are not, as they form a more formal planting to provide a screen.

24. Considering the overall view from these living areas, and the effect of other features such as trees and dwellings on that view, I find the view to the northeast, including the boats at the marina, is a valuable part of the overall view, contributing significantly to the Donkersleys’ amenity. As pressed by Mr Doyle, the Court found at [26] in Haindl v Daisch [2011] NSWLEC 1145:

“However, we are of the opinion that the words a view used in s 14 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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis.”

25. When considering the overall view, however, it is natural that some parts of that view are more highly valued than others. This is not a slicing up of the view to find some less significant slice is obstructed, but a recognition of the features that make the overall view a valuable one. In Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (‘Tenacity’), Senior Commissioner Roseth recognised at [26] that some features of a view are more valuable than others. For the Donkersleys, the most valued part of their view is now obstructed by the lilli pillies.

26. Timothy Stewart, town planner, assessed the view obstruction from the applicant’s dwelling. He concluded at paragraph 19 of his report that “…in my opinion this obstruction to views could not be categorised as ‘severe’”. However at paragraph 16 he noted that:

“Were it not for the current Lilly Pilly hedge, Ground Floor views to the Marina and beyond would be available underneath the foliage of the larger angophora trees.”

27. While terms such as minor and severe are necessarily subjective to some extent, using the terminology of Tenacity, I find that the level of view obstruction caused by the lilli pillies is more than minor or moderate, and is less than devastating: it is severe.

28. The Donkersleys enjoyed this view before the lilli pillies grew up into it. The view obstruction is sufficient to affect their enjoyment of their property.

Matters to be considered at s 14F

29. I have considered the matters at s 14F and discuss those that are relevant below.

30. The Antoloviches’ expectation that they should experience no overlooking is unreasonable for large properties on sloping land, with dwellings at different setbacks from the street. They would still retain some privacy with the pruning proposed by the applicant.

31. The height of the lilli pillies is not a condition of a development consent. Mr Doyle presented the conditions of the respondents’ development consent (‘the consent’) for their pool and landscape works. Condition 8 refers to trees being a minimum of 3 metres in height. Mr Doyle firstly argued that this condition applies to the lilli pillies. These trees were present at the time the development consent was issued. The condition states: “Provide an additional screen planting buffer along the upper level of the western side retaining wall… to achieve a minimum height of 3 metres.” When it was pointed out to Mr Doyle that the lilli pillies were not additional plantings, he argued that additional trees were to be interplanted between the existing lilli pillies, and that if the condition applied to those then it should apply to all.

32. I am not convinced by Mr Doyle’s arguments. The condition clearly does not refer to the lilli pillies, and so is not relevant to my decision. Condition 2 of the consent requires existing trees (including the lilli pillies it seems) to be retained and protected. Their pruning otherwise requires further consent, which was granted for the recent pruning undertaken by the respondents.

33. Balancing the various wishes for views and privacy, I find that the Donkersleys’ proposed pruning would restore the views they have lost, while maintaining some reasonable degree of privacy for the Antoloviches.

34. Branches of the lilli pillies overhang the common boundary, requiring regular maintenance to keep clear the area between the Donkersleys’ dwelling and the boundary. Mr Donkersley argued that each time he wants to prune the lilli pillies he must apply for and obtain council consent. This also requires the Antoloviches’ permission. He submitted that this was an unfair burden on him resulting from the hedge planting.

35. Mr Doyle submitted that the Donkersleys can prune the trees under the consent already granted to the Antoloviches. I do not accept this to be the case. Their most recent consent for pruning allowed 15% of crown removal from each tree within 12 months of the consent. It is not clear if they have already pruned the allowed 15%. If they have, the Donkersleys cannot prune any more within the 12-month period, and all future pruning would require a new consent. I find the Donkersleys are justifiably concerned that every time they want to prune the trees they require permission from Council.

36. The nature of a boundary hedge such as this is different to a single tree overhanging a boundary. Hedges will usually require more frequent pruning, which can be an onerous task for the neighbour who has not planted the hedge and does not necessarily enjoy all the benefits it provides the hedge owner. The burden this can place on a neighbour, as it does here for the Donkersleys, is foreseeable at the time of planting. So that the Donkersleys are spared the annual task of obtaining the Antoloviches’ permission and council consent to prune these trees, orders will include pruning the hedge along the boundary as well as maintaining the trees at a lower height.

Orders

37. Based on the foregoing, the orders of the Court are:

1. The application is granted.

2. During October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that:

1. Trees T2–T12 (trees north of the banksia T13) are no taller than 2.5 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant;

2. Trees T14–T17 (trees south of the banksia T13) are no taller than 4.0 metres in height measured from the base of each tree, and no parts of the trees overhang the common boundary shared with the applicant.

3. Each year the respondents are to give the applicant one week’s notice of the pruning works.

4. Each year the applicant is to allow any access necessary for these works to be completed during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 17 September 2019