Koundouris v Kresner

[2022] NSWLEC 1168

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Koundouris v Kresner [2022] NSWLEC 1168

Hearing dates:

21 October 2021 and1 November 2021

Date of orders:

31 March 2022

Decision date:

31 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicant has lost access to views – privacy and other benefits of the trees – application refused

Legislation Cited:

Interpretation Act 1987, s 34

Trees (Disputes Between Neighbours) Act 2006, ss 3, 4, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

McDougall v Philip [2011] NSWLEC 1280

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)

Category:

Principal judgment

Parties:

Aristidis Eric Koundouris (First Applicant)
Sodnoc Pty Ltd (Second Applicant)
Ilana Michelle Kresner (Respondent)

Representation:

Counsel:
M Staunton with T Poisel (Applicants)
N Eastman (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicants)
Thomson Geer Lawyers (Respondent)

File Number(s):

2021/143985

Publication restriction:

No

Judgment

Background to the application

1. Aristidis Koundouris has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for hedges on neighbouring land to be pruned and maintained for access to views from his property, which is owned by Mr Koundouris and his company Sodnoc Pty Ltd (together, ‘the Applicant’).

2. The hedges are on the adjoining property belonging to Ms Ilana Kresner (‘the Respondent’), who says the application should be dismissed.

3. Many of the relevant issues are not in dispute: that the Respondent has hedges that, to some extent, obstruct valued views from the Applicant’s property; and that the hedges provide some privacy screening for the Respondents.

4. Ms Kresner and her family have lived at 2 St Mervyns Avenue, Point Piper, for some time and have an established garden. Her property is to the northwest of 1 St Mervyns Avenue.

5. The Applicant bought 1 St Mervyns Avenue in 2017, at which time there stood on that property a two-storey building containing two apartments, one on the ground floor and another on the first floor with access to a roof terrace above. The Applicant subsequently demolished that building and commenced construction of a three-storey building with one dwelling on each of the three levels. At the time these proceedings commenced, the new building’s structure was substantially completed.

6. The Applicant claims that views of Sydney Harbour and the Harbour Bridge to the northwest were available from the property in 2017; specifically, from the first-floor apartment and the roof terrace. The Applicant claims that while views are still available from the new second-floor dwelling, they are now obstructed from the first-floor dwelling by hedges on Ms Kresner’s property.

7. The two properties share a common boundary almost 30 metres in length.

The hearing

8. The final hearing in these proceedings took place via audio-visual means over two days: 21 October and 1 November 2021. Counsel for the parties were Mr Staunton (for the Applicant) and Mr Eastman (for the Respondent).

9. The Applicant filed and relied on expert reports from Guy Paroissien (arborist), Dr Richard Lamb (view loss) and George Karavanas (town planning). The Applicant also relied upon an affidavit of Michael Koundouris, Mr Koundouris’ son. The Respondent filed and relied on expert reports from Russell Kingdom (arborist), Georgia Rooney (surveyor) and Alison McCabe (town planning). Mr Kingdom and Ms McCabe attended the hearing, spoke to their reports and were cross-examined.

10. Mr Staunton opined that the Court’s decision would be assisted by a site view, which could be arranged at the end of the hearing if I thought it would be necessary for this decision. For reasons I will come to, I determined a site view was not required. I have been able to reach this decision relying on the available evidence and extensive submissions made during the hearing.

Framework for this decision

11. The Trees Act is limited in its jurisdiction, only applying to certain trees on certain land.

12. Some of the hedges in these proceedings are made up of bamboo. For the purposes of the Trees Act, bamboo is a tree (s 3(1)) of the Trees Act and cl 4 of the Trees (Disputes Between Neighbours) Regulation 2019.

13. The trees are within the Respondent’s property. Both the Respondent’s and the Applicant’s properties are within a residential zone. These properties are not managed by a council. Therefore the Trees Act applies to the trees that are subject to these proceedings (s 4 of the Trees Act).

14. Part 2A of the Trees Act is further limited at s 14A:

14A Application of Part

(1) This Part applies only to groups of 2 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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

15. It is not disputed that all trees in this application are planted to form hedges (there are four hedges) that are more than 2.5 metres tall. The trees are not on Crown land. Part 2A of the Trees Act applies to the subject trees.

16. Enabled by s 14B of the Trees Act, the Applicant has applied to the Court seeking orders to remedy and restrain what he regards as a severe obstruction of a view from his dwelling caused by the Respondent’s hedges. The Respondent’s land adjoins the Applicant’s land.

17. The Applicant gave notice of the application to the Respondent and to Woollahra Municipal Council (‘Council’) as required by s 14C of the Trees Act.

18. If I find the Applicant’s view is severely obstructed by the Respondent’s trees, the orders sought by the Applicant are orders the Court can make. Alternatively, I can make orders as I see fit to remedy, restrain or prevent the view obstruction (s 14D of the Trees Act).

19. Before the Court can make any orders, the jurisdictional tests at s 14E of the Trees Act that must be satisfied.

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

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

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

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

(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.

20. The main issues in dispute lie within s 14E(2)(a)(ii) and, to a greater extent, within s 14E(2)(b). Determining the latter requires consideration of matters at s 14F of the Trees Act.

The Applicant made reasonable effort and gave notice

21. Correspondence between the parties is found at Appendix C to the Claim Details Form in Exhibit A. It demonstrates that the Applicant made reasonable effort to reach agreement with the Respondent. It is not disputed that the Applicant gave notice of the application in accordance with s 14C of the Trees Act.

Trees severely obstruct a view from the Applicant’s dwelling

22. I am satisfied that some of the trees severely obstruct a view from the Applicant’s dwelling, as per my reasoning below. The test at s 14E(2)(a)(ii) must be met for trees in an individual hedge for orders to be made to interfere with that hedge. If I find a severe obstruction is caused by only some trees in a single hedge, I can make orders for all trees in that hedge: in Wisdom v Payn [2011] NSWLEC 1012 Moore SC (as his Honour then was) and Hewett AC found at [66]–[68] that key jurisdictional tests need only be met for the whole hedge, even if some individual trees within the hedge did not meet those tests. A view describes a whole view. There can be several views, from different viewpoints or different parts of a dwelling, but a view from one viewpoint cannot be sliced up into several individual views for separate consideration: Haindl v Daisch [2011] NSWLEC 1145 (“Haindl”) at [26]. The obstructed view must be from a dwelling. The Applicant’s new building contains three dwellings, one on each of its three levels. The Applicant only claims that neighbouring trees severely obstruct a view from the first-floor dwelling, not the ground-floor or second-floor dwellings.

23. Trees in the application are in four groups, or hedges, generally referred to as Hedges or Tree Groups 1–4, although Dr Lamb numbered them differently. In this judgment, even when referring to Dr Lamb’s evidence, I refer to the hedges as per the first column of the table below. Where a hedge contains more than one plant species, I list below only the single dominant species. Where the two arborists differed in identifying species, I use that which seems most likely.

This judgment	Reports of Mr Karavanas, Mr Paroissien, Mr Kingdom	Report of Dr Lamb	Species	Height
Hedge 1	Tree Group 1	Hedge 2	Viburnum odoratissimum (Sweet Viburnum)	Up to 5m
Hedge 2	Tree Group 2	Hedge 1	Phyllostachys nigra (Black Bamboo)	Up to 6m
Hedge 3	Tree Group 3	Hedge 1	Bambusa textilis var. gracilis (Slender Weaver’s Bamboo)	Up to 9m
Hedge 4	Tree Group 4	Hedge 3	Bambusa chungii (or other bamboo) (Emperor White Bamboo or other bamboo)	Up to 9m

The four hedges

24. Hedge 1 grows along the Respondent’s front boundary. Hedge 2 is at the corner of the Respondent’s front boundary and the common boundary shared with the Applicant. Hedge 3 is along the common boundary in the Respondent’s front setback. Hedge 4 is in the Respondent’s back garden.

The views

25. The view from the Applicant’s living room is to the west and northwest. Photographs taken from higher viewing points show a view across the Respondent’s property of parts of Sydney Harbour, the Harbour Bridge in its entirety and the developed land either side of the Harbour.

26. The view from the Applicant’s bedroom is also to the northwest, behind the Respondent’s dwelling. It would potentially include some view of the Harbour.

The view obstruction

27. Dr Lamb found that the view from the Applicant’s living room and balcony was severely obstructed by trees in Hedges 2 and 3 (par 37, Exhibit C). He found that, if Hedges 2 and 3 were not obstructing the view, Hedge 1 “…would then cause significant and potentially severe obstruction of the view…” (par 38).

28. When earlier assessing the ground-level view he found that this view would otherwise include parts of Sydney Harbour between Point Piper, Garden Island and the Harbour Bridge (par 20). He found that parts of the view would be obstructed by dwellings in the foreground, between the Applicant’s land and the Harbour, but the overall view would be a broad horizontal vista were it not for the trees in these hedges. He conceded that it is difficult to determine the precise nature of the potential view were the trees’ obstruction removed (par 24).

29. Assessing the view loss from the bedroom at par 39, Dr Lamb found that Hedge 4 “…causes a significant obstruction of views from the northern part of the Level 1 apartment. The view is partly screened by what appear to be Cedrus trees, but the primary cause of view obstruction is bamboo [Hedge 4]”.

30. Dr Lamb referred to the view-sharing principle in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”) when assessing the quality of the view and the degree of its obstruction.

31. Assessing views from the first-floor apartment, Ms McCabe found (at par 71, Exhibit 1):

“Views are available of the city skyline above the parapet of No. 2 St Mervyns Avenue. The Harbour Bridge is also visible above the parapet of No. 2 St Mervyns Avenue at a standing position from the living room only. I do not consider that this would be available from a seated position.”

32. Then, at pars 72–74 Ms McCabe wrote:

“72. A zoomed-in photograph of the vegetation would indicate that if the vegetation in the front setback was removed that the harbour bridge would be visible (refer Annexure O – Photo 12).

73. Any views are principally of the eastern façade of the building at No. 2 St Mervyns Avenue and the vegetation on site.

74. Bedroom 1 has an outlook to vegetation including vegetation on No. 1 St Mervyns Avenue and other sites and the eastern elevation of No. 2 St Mervyns Avenue. Any views to the harbour would also be over No. 3 St Mervyns Avenue and only from bedroom 1.”

33. Ms McCabe then found at pars 77–80:

“77. While it is difficult to determine there are likely to be views available behind the vegetation in the front setback. This is likely to include water, city skyline and Harbour Bridge.

78. Similarly, there are likely to be water views available from bedroom 1 and balcony behind the vegetation in the rear.

79. For the purposes of the Trees Act 2006, I understand “severe” to mean harsh or extreme – the ordinary meaning of the word. The vegetation in the front and rear setback at level 1 while obstructing potential views, does not result in an unpleasant outlook. It is one of a vegetated setting providing landscape amenity.

80. If such views are available, the combination of vegetation and buildings on No. 2 St Mervyns Avenue, if being applied for today, severely obstructs views potentially available from level 1, of No. 1 St Mervyns Avenue.”

34. Ms McCabe also assessed and described in her report the views available from the ground floor and second floor of the building on the Applicant’s property.

35. Ms McCabe then concluded at pars 90 and 91:

“90. I do not consider the impact on views either originally available or potentially available are severely impacted by the vegetation on No. 2 St Mervyns Avenue when having regard to the development as a whole.

91. When considering No. 1 St Mervyns Avenue as a whole then this impact is considered to be moderate – given views available from within the front setback, level 1 and level 2.”

36. Ms McCabe also considered the view loss in light of Tenacity’s view-sharing principle:

"51. I note that a Tenacity consideration is relevant to the merits of a development proposal and would typically consider the impact of views from a proposed development. Such a consideration would consider the impacts of both built form and vegetation on a view as a whole – it would not separate the matters to assess the totality of an impact. The categorisation of view as negligible, minor, moderate, severe or devasting would be based on views available – including how existing vegetation impacts those views.

52. I have assessed the severity of the impact through the lens of a Tenacity assessment which is only part of an assessment process. This would not be the end of the analysis as a consideration of reasonableness of the proposal would then be required.”

37. Not only does the photographic evidence suggest that a valued view might be available from the first-floor apartment were it not for vegetation, but the evidence of both Dr Lamb and Ms McCabe supports this notion. It is not their descriptions of the views and view obstruction that differ so much as their interpretation of whether or not these amount to a severe obstruction of a view. Both found that views from the first-floor apartment would include water and the Harbour Bridge; and both found that the view is obstructed by the combination of vegetation, principally in the four hedges, and built form. Although both Dr Lamb and Ms McCabe leaned heavily on the Tenacity principle, they came to different conclusions regarding the degree of view obstruction. For completeness, I include the four-step view-sharing principle found at [25]–[29] of Tenacity here.

“25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.”

38. Ms McCabe suggested (at par 79) that the ordinary meaning of ‘severe’ is ‘harsh’ or ‘extreme’. The Court has found the same (for instance, in Haindl at [61]–[64]). The word ‘severe’ also has some context within Tenacity’s qualitative descriptors, with the full range (at [28] of Tenacity) being negligible, minor, moderate, severe or devastating.

39. Turning to Dr Lamb’s assessment, firstly I note that he only found, specifically, that Hedges 2 and 3 caused a severe view obstruction to the first-floor apartment (par 37). Hedge 1’s obstruction to this view he described as “significant and potentially severe” if the obstruction of Hedges 2 and 3 was removed (par 38). Hedge 4’s obstruction was described as ‘significant’, not severe (par 39). This seems pertinent given Dr Lamb’s experience in this jurisdiction and his familiarity with the Tenacity principle.

38. Ms McCabe did not deny the view obstruction caused by trees in the four hedges, but found it was ‘moderate’, one step down from ‘severe’ in the Tenacity principle. It appears this finding rests on her opinion (at par 79) that trees in the hedges do not “…result in an unpleasant outlook. It is one of a vegetated setting providing landscape amenity.” To me, the two are not mutually exclusive: the hedges may provide amenity but might still obstruct a valued view. More significantly, Ms McCabe’s conclusion is also borne of her assessment of the view obstruction in the context of views available from the entire building at 1 St Mervyns Avenue (pars 90–91), this approach being one she verified during cross-examination. Perhaps her approach refers to Tenacity’s third step, where assessing the extent of the view impact “…should be done for the whole of the property, not just for the view that is affected.” If that is the case, I think her approach in these proceedings is misguided. In the context of that third step, ‘property’ would best be read as ‘dwelling’. As Mr Staunton submitted, the owner of the first-floor apartment is unlikely to have unrestricted access to the second-floor apartment to enjoy the view. The ‘whole of the property’ is the whole of the first-floor apartment. The assessment of any view on the first-floor apartment should therefore consider the views available only from the whole of that apartment. In that case, the view from the living area would be the most significant view from the property.

39. During cross-examination, Ms McCabe was asked what view might be available if the hedges were pruned to a height of 3 metres. She answered that the view would include a city view, the Harbour Bridge, and some of the Harbour although less than would be seen from the second floor and less than shown in a photo (Plate 2) of Dr Lamb’s report. Ms McCabe did not say if she would find the obstruction of this view severe if considered only in the context of views available from the first-floor apartment, rather than from the entire building. However, she did write (at par 80 of her report): “If such views are available, the combination of vegetation and buildings on No. 2 St Mervyns Avenue, if being applied for today, severely obstructs views potentially available from level 1, of No. 1 St Mervyns Avenue.” While it may be the “combination of vegetation and buildings” that severely obstructs the view, the dwelling at 2 St Mervyn’s Avenue would not on its own severely obstruct the view.

40. This leads me to find that the view across the front of the Respondent’s property, perhaps the apartment’s most valued view, is obstructed by trees in Hedges 2 and 3, and in their absence would be severely obstructed by trees in Hedge 1.

41. The evidence regarding the view obstruction caused by Hedge 4 is more limited. On the available evidence, I cannot be satisfied that it severely obstructs the view from the bedroom, as claimed, of the first-floor apartment. Photos 19 and 20 in Annexure O of Ms McCabe’s report show that the Applicant’s own cedar trees and larger trees to the west contribute most to the view obstruction, with bamboo in Hedge 4 making only a minor contribution to the view obstruction. I find Hedge 4 does not cause a severe view obstruction. However, for reasons explained further below, had I found otherwise the outcome would be no different.

The Applicant’s interest in gaining orders does not outweigh other relevant matters

44. The final jurisdictional test, found at s 14E(2)(b) of the Trees Act, requires the Court to be satisfied, before making any orders, that “…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.” (Emphasis added.)

45. Immediately following s 14E(2)(b) is s 14F ‘Matters to be considered by Court’, which contains a list of 19 items requiring the Court’s consideration. It seems no coincidence that the ‘matters to be considered’ immediately follow the balancing at s 14E(2)(b) of the Applicant’s interests against ‘any other matters’ that might be reasons for not interfering with the trees. Consideration of the s 14F matters informs the test at s 14E(2)(b). It is not explained how these matters should be considered, but the Court relies on the guidance provided in previous judgments and the experience of its Commissioners in these matters.

The trees’ location

46. The location of each of the four hedges is described above at [24]. They are all within the Respondent’s property, close to the common boundary. They are all close enough to the Applicant’s first-floor dwelling to obstruct a view, rather than being a part of the view.

Whether the trees existed prior to the Applicant’s dwelling

47. It is necessary here, given the nature of the application, to include the complete wording at s 14F(b):

“whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to)”.

48. The Court’s decisions in Pt 2A matters demonstrate a consistent approach to consideration of s 14F(b). In McDougall v Philip [2011] NSWLEC 1280 (“McDougall”), Fakes C wrote at [22]–[24]:

“22 Relevantly, the “Review of the Trees (Disputes Between Neighbours) Act 2006” undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court’s web site since the amended Act came into force – see

That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.

b) That this jurisdiction be strictly limited, with applications restricted to hedges which:

are both high and give the effect of a solid barrier, and

are causing severe impact for a dwelling, and

have caused the impact to the applicant (not to the previous occupant), and

are located between neighbours on adjoining land.

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title.

f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.

23 The discussion relating to Recommendation 9 [page 35] states in part that:

The Court would only have the power to hear matters regarding: ...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 [or in this case a view] which had not existed at the time of the purchase.

24 The amended Act incorporates all of the recommendations made in the review.”

(Emphasis added.)

49. It is desirable that people can rely on the meaning conveyed by the text of any legislative instrument (s 34(3)(a) of the Interpretation Act 1987), including the Trees Act. Nevertheless, there are times when the consideration of extrinsic material is justified, such as when that material might confirm “…that the meaning of the provision is the ordinary meaning conveyed by the text of the provision” (from s 34(1)(a) of the Interpretation Act).

50. During oral submissions, Mr Staunton opined that the jurisdictional issues should not be confused with the s 14F matters. But as I have explained above, I do not see the s 14F matters as sitting outside the jurisdictional tests; rather they are matters that inform the jurisdictional test at s 14E(2)(b), assisting the Court to determine if the Applicant’s interests outweigh ‘any other matters’.

51. Mr Staunton then submitted that, despite Recommendation 9 of the ‘2009 Review of the Trees (Disputes Between Neighbours) Act 2006’ (‘the 2009 Review’) (see [23] of McDougall), the restriction that “…the applicant themselves has lost the light or view” was not written into the Trees Act. However, I find the wording of s 14F(b) does convey the intent of Recommendation 9 of the 2009 Review. The section in parentheses suggests that if a property owner extends their dwelling, consideration should be given to whether any trees that obstruct a view from that addition were already present at the time it was added. If there was no intent to limit Pt 2A’s jurisdiction to sunlight or views previously available to the current owner, there would be no need for this wording. If this is not entirely clear from the wording, the Court can refer to background material, as Fakes C did in McDougall, which supports this interpretation.

52. Furthermore, the wording of the jurisdictional test at s 14E(2)(b) refers not only to the severity of a view (or sunlight) obstruction but also to the nature of the obstruction. This provides the scope for considering various elements of the nature of the obstruction, including when it occurred or when it first affected the Applicant.

53. If the Court takes this approach, as it does, the Applicant submitted that there was a view available from the first floor of the building that stood on their property at the time of their 2017 purchase – a view now obstructed by the Respondent’s hedges. I reject that proposition, for the following reasons.

Affidavit of Michael Koundouris

54. As Mr Eastman submitted, the Applicant relies principally on the last-minute affidavit of Mr Koundouris’ son, Michael Koundouris, to demonstrate the view available from the property’s first floor at the time of the Applicant’s purchase in 2017. Michael Koundouris stated that he recalled (at par 5, Exhibit F) “…undertaking a number of inspections of the premises prior to them being purchased.” At par 6 of his affidavit, Michael Koundouris wrote:

“I recall observing from these inspections that there were views available from the level 1 living and bedroom (room 9) of the building and from the rooftop terrace where both the harbour and harbour bridge were visible.”

55. This statement does not satisfy the Court that the valued views described earlier were available from the first-floor dwelling in 2017. It seems at least possible that Michael Koundouris has chosen his wording carefully. When he recalls that views were available, it is collectively from the level 1 dwelling and the rooftop terrace. He does not state that a particular view was available from level 1, nor does he describe the nature of a view from level 1. The phrase referring to “both the harbour and harbour bridge” immediately follows “from the rooftop terrace” and might only refer to the view from that level. Michael Koundouris was not present at the hearing to elaborate. The Court cannot be satisfied on the limited and somewhat vague statement quoted above for satisfaction regarding the nature of views from the first floor in 2017. Although he undertook several inspections prior to the 2017 purchase, the only photograph attached to his affidavit was taken in 2021; no photographs from 2017 were included to support his statement.

Other vegetation shown on the Applicant’s plans

56. In fact, evidence before the Court indicates that a view was not available from the Applicant’s first floor in 2017. At the time of the Applicant’s purchase, vegetation grew on the Applicant’s property along the common boundary. It can be seen in aerial photographs (for instance Annexure L, Exhibit 1). The vegetation is described in Council’s 2018 ‘Development Consent No. 468/2018/1 Notice of Determination’ (Annexure D, Exhibit 1) – tree numbering, species and dimensions are copied into the table below. Also copied below into the final column are the dimensions from a survey by Eric Scerri & Associates updated in May 2017 (Exhibit 1, Annexure K). Sections of plans from a 2006 tree report (Exhibit 1, Annexure C) and from the Scerri survey plan show the trees’ locations and are also copied below.

Tree No.	Species	Dimensions in Council’s 2018 Development Consent	Dimensions on 2016 Survey Plan
2	Celtis sinensis	9 x 10 m	9 x 7 m
3	Camellia japonica	4 x 3 m	6 x 3 m
4	Syzygium luehmannii	8 x 8 m	5 x 3 m
5	Syzygium luehmannii	5 x 4 m	5 x 3 m
6	Cedrus atlantica	10 x 6 m	6 x 4 m
7	Cedrus atlantica	15 x 9 m	12 x 8 m

Figure 1. Excerpt of plan from Earthscape tree report 2006 (Exhibit 1, Annexure C)

Figure 2. Excerpt of plan from Eric Scerri survey plan (Exhibit 1, Annexure K)

57. Trees 2 and 4, which were apparently 9 and 8 metres tall respectively, in 2018, were directly west of the first-floor apartment where it extended toward the common boundary, including its living room. These trees were likely to obstruct any view of the Sydney Harbour and Harbour Bridge, regardless of vegetation beyond on the Respondent’s property. This finding is supported by historic real estate photographs promoting the sale of the property prior to the Applicant’s purchase. The first photograph below shows the view from the roof terrace (second-floor equivalent) prior to the Applicant’s purchase. The second photograph shows the same view available from the new building’s second floor in September 2021.

Figure 3. From p 1 of 2, Annexure J of McCabe report (real estate photos for 2017 sale).

Figure 4. P 13 of 20, Annexure O of McCabe report.

58. The vegetation on the Applicant’s property in 2017 (or earlier) can be seen in the first photograph above, beyond the rooftop terrace’s railing. It appears that the vegetation would obstruct the view from directly below, in the first-floor living area.

59. A Google Street View image taken in July 2017 (Exhibit 7) shows the Applicant’s vegetation extending up to the top of the building’s first floor. An excerpt of that image is included below. The Applicant’s property is on the right, with the Applicant’s own vegetation referred to above indicated by a yellow arrow I have added.

Figure 5. Excerpt of 2017 Google Street View image (Exhibit 7).

60. The Applicant’s vegetation clearly reached to the rooftop terrace. Aerial photographs in Annexure L of Exhibit 1 show that this vegetation was not cleared until 2020. This evidence indicates to me that there was no significant view available from the Applicant’s first floor in 2017.

61. Based on the foregoing reasons, I find that the Applicant has not enjoyed a view from the first floor of the property. The Applicant seeks a view that was not previously available to the Applicant.

Whether the trees reached 2.5 metres or taller since 2017

62. Trees in all four hedges were already taller than 2.5 metres in 2017 when the Applicant purchased 1 St Mervyns Avenue (s 14F(c)). Although Mr Paroissien did not express a view on this, Mr Kingdom thought they were all mature trees in 2017, all taller than 2.5 metres (p 13, Exhibit 2). To my mind, the inclusion of this matter for consideration at s 14F of the Trees Act further reinforces the Court’s approach to considering the view (or sunlight access) impact to the Applicant during the time they have owned or occupied their property, as per McDougall.

Council consent

63. After receiving a copy of the tree dispute application (as per s 14C of the Trees Act) Council replied to the Applicant’s lawyers via letter dated 8 July 2021 (p 9 of exhibit B), in which Council wrote:

“We note the following:

The vegetation subject to this application (Viburnum odoratissimum, Phyllostachys nigra & Bambusa textilis var. gracilis) is either exempt from protection under clause E3.4.1 “Noxious weeds and exempt species” of Chapter E3 – Tree Management (Woollahra Development Control Plan 2015), or of low significance.

Council would not object to the proposed pruning works.”

64. Council permission to interfere with trees in the hedges is not required or, if required, would likely be approved by Council.

Conditions of development consent

65. The Respondent submitted that trees in their hedges were required by a condition of their own development consent. The Applicant argued that the trees planted by the Respondent do not match the Respondent’s stamped landscape plan (at the tail end of the 2006 Development Consent for the Respondent’s property, Annexure I of Exhibit 1). The approved landscape plan shows a planting (no. 11) along the common boundary between the Respondent’s dwelling and the boundary, with the key stating: “11. Privacy planting including Raphis humilis…”

66. Mr Staunton submitted that the landscape plan does not include bamboo along this boundary, nor does it specify any hedges, so the Respondent’s planting is not in accordance with the approved landscape plan.

67. I note that the plant list on p 2 of the approved landscape plan is headed ‘Indicative Plant Schedule’ with ‘mature heights’ of up to 4 metres for species in this ‘privacy planting’. Some of the existing trees are significantly taller than this, with bamboo in Hedge 3 being up to 9 metres tall. While this is a matter for the Court to consider, I do not see that it is the Court’s role in a tree dispute to attempt to enforce an indicative condition of a development consent.

68. Conditions of the Applicant’s own development consent are also relevant. Condition C.1(c) required an amended landscape plan to include:

“iv. All proposed landscaping along the western boundary to the north of the front setback area shall be planted with a species which attains a maximum height of 7m at maturity and be maintained to a minimum height of 5m. At the time of planting the species shall be at a minimum height of 3m.”

69. The Applicant sought a modification to this condition, allowing vegetation between the Applicant’s building and the common boundary to be maintained at a height of 3 metres. Council’s determination to refuse this modification (Exhibit 5) included:

“Following inspections of the subject site and the property at 2 St Mervyns Avenue, it is considered that allowing for landscaping with a reduced minimum height of 3m will result in adverse privacy impact on to the property at 2 St Mervyns Avenue (refer to figure 3). The pool area of 2 St Mervyns Avenue and the rear yard is [sic] located within 9m of the first floor balconies and will be adversely impacted by the proposed modification. Having a landscaping with a minimum height of 5m will significantly minimise the privacy impact onto the adjoining property at 2 St Mervyns Avenue. Therefore, in order to minimise the privacy impacts of the proposed modification onto the adjoining properties, the modification to Condition C.1(c)(iv) is not supported. This part of Condition C.1(c) should remain unchanged.”

70. The Applicant subsequently sought a modification allowing this vegetation to be maintained at a height of 4 metres. Council had not determined this application at the time of the hearing. Mr Staunton submitted that the Court should consider the possibility that the modification will be approved so that the Applicant’s vegetation might be only 4 metres tall. Furthermore, when it is first planted it will only be 3 metres tall, allowing the Applicant greater view access for a period.

71. With the requirement for taller vegetation on their own property, the Applicant proposed alternative orders at the hearing for the Respondent’s hedges to be maintained at heights closer to 4.5 metres: RL14.250 within the front setback and up to the front of the Respondent’s dwelling, then RL15.150 to the front of the Applicant’s building line. Mr Staunton submitted that these were orders the Court could make, using its discretion to make orders as it sees fit.

70. Mr Eastman submitted that the pending modification determination cannot be considered in this decision, so the Court must rely on the existing condition for the Applicant’s vegetation to be maintained at a height of 5 metres or more, in which case the Applicant would have nothing to gain by the Respondent pruning their hedges to 3 metres, as sought in the application. Mr Eastman submitted that the Applicant’s alternative orders (above) came too late, denying the Respondent sufficient time to evaluate their impact on privacy.

71. I find Mr Eastman’s suggested approach regarding Council’s pending determination on the modification to be preferred. Council has already refused the proposed modification for shorter vegetation on the Applicant’s property. The Court should not rely on a different outcome in a further undetermined consent modification. Council’s earlier determination clearly favoured the Respondent’s privacy over the Applicant’s potential to gain a view and I find no reason here to interfere with that.

Value of the vegetation

74. The trees have no historic, social or cultural value. They contribute to the landscape value of the Respondent’s property. Those near the front of the property (Hedge 1 and Hedge 2) also contribute to public amenity. The trees contribute some ecosystem services such as cooling, shading and pollutant removal, but otherwise have relatively low environmental value. Mr Paroissien found no particular value in the trees beyond their contribution to the Respondent’s landscape. Mr Kingdom thought some of the trees might provide habitat and other environmental values, although he only suggested the trees were large enough to provide nesting sites, rather than observing any specific nests or habitat. I do not think the trees’ contribution to environmental values would be significantly reduced by the proposed pruning.

Privacy

75. The Respondent submitted that pruning the trees would impact their privacy. Hedges 1 and 2 screen their property from the public domain and properties to their south. Hedges 3 and 4 prevent overlooking from the Applicant’s property. The Applicant submitted that the Respondent’s privacy could be sufficiently maintained with the trees at lower heights.

76. The Respondent relied on Ms McCabe’s evidence regarding potential impacts to privacy. Ms McCabe considered the impacts of maintaining hedges at 3 metres, as proposed in the application, rather than the Applicant’s later proposition of ~4.5 metres. Ms McCabe referred to the survey report of LTS Surveyors (Exhibit 3), which includes photos taken from within the Respondent’s property, from within other neighbouring properties and from the public domain. On many of the photographs in the survey report, red lines have been added to indicate the proposed 3-metre pruning height.

77. Ms McCabe found that:

“The pruning of the vegetation to 3 metres will open up overlooking and direct line of sight into:

• Bedroom windows;

• Rear yard;

• Pool area; and

• Roof top terrace

from immediately surrounding development at No. 3 Buckhurst Avenue, No. 8 St Mervyns Avenue and No. 1 St Mervyns Avenue, adversely impacting the landscape amenity and privacy currently enjoyed by the residents.”

78. I have also reviewed the photographs in the LTS survey report and I accept that pruning to 3 metres would impact both privacy and amenity for the Respondent. I consider it is perhaps unreasonable to expect privacy from the more distant dwellings mentioned by Ms McCabe, especially in this densely developed environment. However the opening up of sight lines from the Applicant’s property would be significant; and, preventing this might reasonably be expected.

79. Photo 16 in Annexure O of Ms McCabe’s report demonstrates that maintaining Hedge 3 at the height of the awning above the Respondent’s window, a height close to that sought by the Applicant’s alternative orders, would prevent overlooking into the Respondent’s windows form the Applicant’s first-floor dwelling. But Mr Eastman submitted that the Applicant has not fully demonstrated the overlooking outcomes from the higher second-floor dwelling into the Respondent’s dwelling and pool area, despite some effort to do so during the hearing. To some extent, the Court is assisted by Council’s determination on the Applicant’s earlier application to modify their consent condition. Council assessed the increased potential for overlooking into the Respondent’s dwelling and open space and found the impacts to the Respondent outweighed the benefits to the Applicant. Having reviewed the potential overlooking impacts of maintaining the Respondent’s hedges, even at heights in the Applicant’s alternative orders, I find the same. The level above the first-floor dwelling will be another dwelling, rather than the previous roof terrace, and is designed to take in views to the west. From the balcony of that second-floor dwelling, sightlines into the Respondent’s dwelling and pool would be opened up by the proposed pruning. Mr Karavanas showed that these sightlines were beyond the 9-metre or 12-metre guidelines of the DCP. That may be, but Council found the sightlines worth obscuring with vegetation. Not only do I find the same, but given Council’s determination there is little point in pruning the Respondent’s hedges lower than the Applicant’s own vegetation, as this would achieve no gain to the Applicant’s views.

Impacts of pruning

80. Pruning to 3 metres would be a significant reduction in the heights of some of these hedges. Bamboo hedges will respond quickly to such pruning. The Viburnum in Hedge 1 might appear unattractive for a period but should recover. Mr Paroissien found all hedges would tolerate the proposed pruning. Mr Kingdom thought bamboo would be negatively impacted, but his reasons were not convincing. In my experience, the species of bamboo in the Respondent’s hedges would respond positively to any pruning following an initial loss of amenity.

Other elements contributing to the view obstruction

81. Views from the Applicant’s dwelling are partly obstructed by the Respondent’s dwelling. They were principally obstructed by the Applicant’s own vegetation in 2017. They will again be obstructed by the Applicant’s own vegetation when it complies with their development consent conditions.

Evergreen species

82. All four hedges are of evergreen species that retain leaves throughout the year.

Nature of the views

83. The elements that make up the potential views from the Applicant’s dwelling are described above. The views have not been available to the Applicant.

Parts of the dwelling

84. Views are obstructed from the living room, balcony and bedroom of the Applicant’s dwelling. They are all areas from which a view might be appreciated.

Other matters

85. The Applicant opined that a site view would assist the Court’s decision. That the hedges obstruct a view is not disputed; a site view would be likely to satisfy me only of something I have already found to be the case. A site view would not assist me to determine the extent of the view at the time the Applicant purchased their property, a matter which is crucial to the outcome in these proceedings. My finding on that has been reached using the extensive material filed with the Court.

Conclusion

86. I find that trees in Hedges 1, 2 and 3 cause a severe obstruction of a view from the Applicant’s first-floor dwelling. However, I also find that the reasons to avoid interfering with the trees outweigh the Applicant’s interests in removing the view obstruction. Principal among those reasons is my finding that the Applicant has not had access to the sought-after view during the period they have owned their property. Other reasons include the contribution to the view obstruction caused by the Applicant’s own vegetation, both the vegetation that existed when they purchased their property, and vegetation required by a condition of their development consent.

Orders

87. As a result of the foregoing, the Court orders that:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

08 March 2023 - Counsel amended

Decision last updated: 08 March 2023