Evans v Anderson
[2011] NSWLEC 1024
•21 February 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Evans v Anderson [2011] NSWLEC 1024 Hearing dates: 21 February 2011 Decision date: 21 February 2011 Jurisdiction: Class 2 Before: Fakes C and Galwey AC Decision: 1. Application to remove trees dismissed.
2. Trees to be pruned and maintained at a specified height.
Catchwords: TREES [NEIGHBOURS]; hedge; severe obstruction of a view; pruning ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Mr M Evans (Applicant)
Mr L Anderson (Respondent)Representation: Mr M Evans [litigant in person] (Applicant)
Mr L Anderson [litigant in person] (Respondent)
File Number(s): 20829 of 2010
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONERS: This is an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Avalon against the owner of trees growing on an adjoining property.
The applicant is seeking the removal of nine trees, their replacement with a different species, and the maintenance of the new trees at a specific height.
These orders are sought because the applicant claims that the trees obstruct views from his dwelling.
The respondent wishes to retain the trees and has not offered to prune them because of the privacy they afford his dwelling and back garden.
Onsite view and relevant background
The hearing commenced onsite with an assessment of the view loss from the viewpoint indicated within the applicant's dwelling, that being the main living room and attached balcony. We assessed the potential view, the impact of the subject trees on the view, and the impact of other trees on the view. We assessed the potential for overlooking into the respondent's garden and dwelling and the degree of privacy provided to the respondent by any screening effect of the trees. A height stick was used to measure the heights of the trees, the height of the applicant's hedge and the height of the fence.
We then viewed the trees from the respondent's property and assessed the privacy provided to his dwelling and rear garden by the trees.
The trees, nine Leighton Green Cypress, from a row along the boundary dividing the two properties. They range from 4.5 to 5.5 metres tall. They provide a dense visual screen along part of the common boundary.
The applicant purchased the property in 2000. The Cypress trees were planted in 2003. The applicant's dwelling was constructed in 2004. The dwelling is higher on the hill than the respondent's dwelling and was designed to take advantage of the available views. Photographs taken during construction show the Cypress trees were less than two metres tall at that stage and did not obstruct the view at all from V1.
The issues of privacy and overlooking were considered during the development application, as Council required frosted glass in many of the windows overlooking the respondent's property. A row of Lillypillies along the same boundary but within the applicant's property is 2.8 to 3.3 metres tall. These trees were planted as part of the approved landscape plan included with the development application. They do not obstruct the view and would provide some, but not complete, privacy to the respondent.
There is a Banksia in the rear garden of the respondent's property that is to the south of and slightly taller than the Cypress trees. It partially obstructs the view but its canopy is not a dense screen like the Cypress trees. There are 2 other Banksias in the respondent's garden to the east; these and other trees further distant could be considered to be part of the view, rather than blocking the view.
From the indicated viewing point in the applicant's dwelling (V1) the trees obstruct the view to the southeast. The view includes the ocean (but not the beach), Bangalley Headland Reserve and other trees in the landscape. The view could be seen from both a standing position and from a seated position on the sofa. This scenic view could reasonably be regarded as significant.
Considering the above, we find that the Cypress trees do severely obstruct the view.
Looking from the respondent's property it is clear that the Cypress trees provide significant privacy to the garden and dwelling. However it is also clear that even from the furthermost part of the garden, the tops of the trees are well above the sightline to the applicant's lounge room (V1) and trees at a shorter height would provide equivalent screening.
Jurisdiction
We are satisfied that the nine trees satisfy the test in s 14A of the Act: the trees are planted so as to form a hedge, rise to a height of at least 2.5m and are on appropriately zoned land.
Of importance is 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.
We are satisfied that some of the trees do severely obstruct a view from the applicants' dwelling and therefore s 14E(a)(ii) is satisfied and the Court can then proceed to consider s 14E(2)(b) and the balance between the needs of the applicants, the trees and the respondents. This requires the Court to consider s 14F of the Act.
The clauses in s 14F that are relevant here are:
(a) The trees are wholly located on the respondent's property.
(b) The trees were planted after the applicant purchased the property and at the time of the applicant's construction the trees were small and did not obstruct the view.
(c) The trees have grown to a height of more than 2.5 metres since the dwelling was constructed.
(e) A hedge that was required as part of the applicant's development consent has been planted and maintained within the applicant's property.
(g) Possums were seen in the trees during the onsite view, so it is possible that the trees contribute to the local ecosystem.
(i) The trees are not of such a size or in a prominent location to make a significant contribution to public amenity.
(k) The trees are of a species and size that can be pruned without unduly affecting their health or function.
(l) The trees contribute to the privacy of the respondent's dwelling and garden; however it is noted that they could provide a similar level of privacy at a reduced height.
(m) As previously stated, parts of the view are obstructed by the Banksia but its crown does not provide a dense screen; rather it allows some of the view to be seen through it.
(n) The trees were pruned approximately two years ago.
(p) The trees are evergreen.
(q) The view from V1 is significant; the remaining view is severely reduced.
(r) The living area has been designed to take advantage of the view to the southeast. While the view is also available from the kitchen, we consider the lounge room is a major living area.
Conclusions
After viewing the site and the evidence we have concluded that the nine Cypress trees do severely obstruct the view from the applicant's dwelling.
In balancing the needs of the parties and the trees as required by s 14E(2)(b), we note that the trees provide significant privacy to the garden and dwelling of the respondent. However, the privacy of the respondent's property would not be significantly compromised if the trees were reduced in height sufficiently to restore most of the applicant's view. The trees themselves would not be detrimentally affected by such pruning.
Orders
Therefore as a consequence of the foregoing, the Orders of the Court are:
(1) The application to remove the trees is dismissed.
(2) The respondent is to engage and pay for an AQF level 3 (tradesperson) horticulturist or arborist to prune the Cypress trees to a height of no more than 3.2 metres.
(3) Thereafter, the trees are to be maintained at a height no greater than 3.5m at the cost of the respondent.
(4) The initial pruning is to be carried out within 60 days of the date of these orders.
J Fakes
Commissioner of the Court
D Galwey
Acting Commissioner of the Court
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Decision last updated: 25 February 2011
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