Low v Nazarewicz

[2022] NSWLEC 1597

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Low v Nazarewicz [2022] NSWLEC 1597

Hearing dates:

15 September 2022

Date of orders:

31 October 2022

Decision date:

31 October 2022

Jurisdiction:

Class 2

Before:

Bish C

Decision:

The Court orders that:

(1) The Pt 2A application is refused

(2)   All exhibits are returned.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the Applicant made reasonable effort – high hedges – is the obstruction of views severe – balance between views and privacy

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2A, ss 14B, 14C, 14E, 14RE

Cases Cited:

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

Category:

Principal judgment

Parties:

Patricia Low (Applicant)
Valda Nazarewicz (Respondent 1)
Phillipe Nazarewicz (Respondent 2)

Representation:

Counsel:
T To (Applicant)
A Sattler (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Sattler & Associates Pty Ltd (Respondents)

File Number(s):

2021/363075

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought by Patricia Low (the applicant) against Valda Nazarewicz and Phillip Nazarewicz (the respondents), being an adjoining neighbour, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), which seeks orders for the respondents to prune trees that form a hedge on their property.

2. Pursuant to Pt 2A of the Trees Act, the applicant seeks orders for the respondents to prune and maintain a hedge that cause a severe obstruction of view.

Background and context to the application

3. The applicant purchased 5 Ryan Avenue in 2009. The dwelling at 5 Ryan Avenue was altered with additions by development consent granted in 2017. The dwelling was originally single storey, and after construction, as per the consent, became a two-storey dwelling with bedrooms upstairs and living areas downstairs in the original part of the structure.

4. The area surrounding the applicant’s land is steeply sloping, with dwellings on other lots ranging from two to three stories, responding to the topography and seeking to capture the views of the harbour, across Hunters Bay. Dwellings generally have the private open space with pools at the rear, and direct living areas towards the view.

5. It is unclear how long the respondents have been resident of 26 Esther Road, although it is understood that the dwelling and the owners of this land have not changed since prior to the purchase of 5 Ryan Avenue. The land at 26 Esther Road is occupied by an elevated two-storey dwelling with basement garage, a small rear, elevated private open space and a centralised courtyard with pool, connecting the main habitable areas of the dwelling (in an L shape).

6. The evidence suggests that prior to May 2017, the western boundary of the adjoining (26 Esther Avenue) land, which is dominated by rocky outcrop, contained isolated stands of established vegetation including Bangalow palm trees. However, the planting and extent of the stands of Golden Cane palms (hereafter the Palms) located in the same area are in dispute. The respondents claim that the Palms were planted some 20 years ago at the same time of the landscaping with the Bangalow palms. The applicant claims that these Palms were planted in May 2017, together with a new stand of bamboo trees along the rear (common) fence. The timing of the planting of the bamboo trees is not in dispute and occurred in May 2017. The Palms currently reach over 10 m in height from ground level, with significant sprouting growth at their base. The bamboo appears to be dead/dying and damaged, although had reached over 10 m in height.

7. It is understood that the respondents seek to maintain the landscaping at the rear of 26 Esther Road to provide privacy screening to their internal courtyard and lounge, as viewed from the new second storey on 5 Ryan Avenue.

The hearing

8. The hearing in these proceedings took place both onsite and in Court. Parties were represented by Counsel and had relevant experts in attendance. The Court visited both properties, assessed the trees in dispute, the view perspective and  any view obstruction.

9. The applicant provided recent and historical photographs of views obtained from her property, which are supported by an expert planning report. The applicant’s affidavit of 19 May 2022 and 29 August 2022 were read onto the record, explaining the history of communication.

10. The respondents provided expert reports on arboriculture and view, which included recent and historical photographs of the trees in dispute.

11. Further to the evidence tendered, I observed the trees in dispute and proximity to relevant viewpoints, and rely on my own expertise in making this decision.

The Applicant made reasonable effort

12. Part 2A, ss 14C(1) and 14E(1) of the Trees Act requires the Court to be satisfied, before making any orders, that the Applicant has made a reasonable effort to reach agreement with the respondents before the Court can make orders, as described below.

14C Notice of application for order to be given to owners of affected land

(1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to:

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

(2) The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period.

(3) The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

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.

…

13. Based on the evidence, I accept that the applicant has attempted to discuss the issue of the placement and height of the hedge trees with the respondents, having written to them on numerous occasions, starting in June 2018, and which continued sporadically until 13 December 2021. The respondents have throughout this time continued to disagree to the removal of the hedge to protect their privacy, most recently on 19 December 2021.

14. The appeal was lodged with the Court on 22 December 2021, pursuant to Pt 2A, s 14B of the Trees Act, below, seeking an order to prune the Palms and bamboo trees:

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(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.

15. I am satisfied that the applicant’s efforts to communicate with the respondents are reasonable. Pursuant to Pt2A, s 14C(3) of the Trees Act, I find that it is appropriate in the circumstances to waive the requirement to give (21 days) notice and to vary the period of notice. The applicant has made a reasonable effort to resolve the dispute, initiating communication some 3.5 years prior to lodging the appeal.

Trees in the application

16. The applicants’ appeal relates to the Palms and bamboo trees located along the common boundary fence with 26 Esther Road. The Palms and bamboo trees are at variable heights, ranging from about 1.5m to above 10m from ground surface at the time of the hearing, as explained in evidence of the respondents’ arborist. 

17. The parties agree, and I concur that the Palms and the bamboo trees together form a hedge, pursuant to Pt 2A, s 14A of the Tree Act, below:

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).

18. The subject trees are not planted in an orderly row, there are more than two trees, which exceed 2.5m height, and when viewed from the applicants’ land, the trees present as a hedge. Therefore, Pt 2A, s 14A(1) of the Trees Act is engaged.

Severe obstruction

19. Before making an order, the Court is required to assess and be satisfied as to the severity of the obstruction of views from the applicants’ dwelling on 5 Ryan Avenue (hereafter the land), as a consequence of the trees (that form the hedge) in dispute located on 26 Esther Road (hereafter the adjoining land), pursuant to Pt 2A, s 14E(2) of the Trees Act, below:

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. In assessing the severity of obstruction to views from the land, the Court draws guidance in the planning principles on view sharing established in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), which at [26] – [28] states:

[26] The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views eg 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 eg 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….”

[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 negligible, minor, moderate, severe or devastating.

21. Based on the evidence before the Court and observations made from the site view, I accept that the views across Hunters Bay towards North Head are highly valued, and include the interface between land and water. Most dwellings in the surrounding area are oriented to capture this view. The view across Hunters Bay is visible across the rear boundary from the land (directed across 26 Esther) at the time of purchase by the applicant, although this view was filtered by existing vegetation. I assess that the rear (boundary) view perspective is however not the main view corridor with respect to ‘value’, with views from the land more significantly obtained across the (northern) side boundary. The rear (eastern) views across the adjoining land are and have since the applicant purchased the land, filtered (by dense vegetation). A limited and highly filtered view was available from the original dwelling lounge windows through this perspective.

22. I accept that the view observed from the private open space in the rear yard is across Hunters Bay including the land/water interface, and is valued by the applicant. However, these views were always filtered. The views to the east through the adjoining land, are currently, with the hedge at its current height and location, further filtered from the land.

23. I am satisfied that the Palms on the adjoining land are not a recent planting and had formed part of the view corridor prior to purchase of the land by the applicant. I accept that the bamboo trees are a new planting, however these trees do not themselves severely obstruct the view from the dwelling. The view remains filtered from several perspectives in the rear yard, and the bamboo trees do not obstruct the view from the (original) dwelling.

24. In consideration of the site context through the prism of the first three Tenacity steps, this leads me to a determination of not a severe obstruction of view. In assessment of the extent, position and nature of the trees that form the hedge in presenting a view obstruction, I am not satisfied that the impact is severe, pursuant to s 14E(2)(ii) of the Trees Act.

25. I am therefore not satisfied that pruning of the hedge, as sought by the applicant, would provide the relief or any significant minimisation of perceived view loss to the dwelling on the applicant’s land. Prior to purchase of the land, the view was already filtered by the Bangalow Palms and Golden Cane Palms on the respondent’s land, together with plantings on the applicants’ land. The planting of the bamboo trees, although are new, does not cause a severe obstruction of view from the dwelling.

26. Therefore, Pt 2A, s 14E(2)(a) of the Trees Act is not engaged. There is no need for the Court to consider the balancing of interests as required by Pt 2A, s 14E(2)(b) to make an order relating to the hedge.

27. I do however note that the hedge on the (respondents) adjoining land appears to serve little effect in providing the sought-after privacy to an internal private open space and rear of lounge, other than a limited filtering of visual amenity from an upstairs bedroom, with installed privacy screens, which is not unexpected in an urban environment with dwellings that mainly orient in the same direction.

Conclusions

28. I am satisfied that the requirements of Pt 2A, s 14E(1) of the Trees Act are met, for the Court to assess the making of an order regarding this appeal, because the applicant has made reasonable effort to reach an agreement with the respondent, and that the notice period should be waived.

29. Pursuant to s 14E(2)(a) of the Trees Act, I am also satisfied that the hedge in dispute does not cause a severe obstruction of views from the dwelling on the applicant’s land. An order requiring the pruning of the hedge, as sought by the applicant to address a perceived (severe) view obstruction, does not outweigh disturbance of specifically the Palms that form the hedge. The bamboo trees serve little purpose to provide privacy to the adjoining land. They cause more of a symbol of nuisance effect between neighbours.

30. Based on the evidence before me and my observations made on the site view, I am satisfied that the trees that form the hedge on the respondent’s land at 26 Esther Road do not require pruning or removal. There is sufficient conclusive evidence provided to satisfy me that the applicant’s interest in having the (hedge) obstruction removed, remedied or restrained does not outweigh disturbing or interfering with the trees by making an order, pursuant to Pt 2A, s 14E(2)(b) of the Trees Act.

Orders

31. The orders of the Court are as follows:

1. The Pt 2A application is refused

2. All exhibits are returned.

…………………….

Sarah Bish

Commissioner of the Court

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Amendments

31 October 2022 - Minor formatting amendments

Decision last updated: 31 October 2022