Rindfleish v Smith

[2017] NSWLEC 1534

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rindfleish & anor v Smith & anor [2017] NSWLEC 1534
Hearing dates:	25 September 2017
Date of orders:	25 September 2017
Decision date:	25 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Hedge; obstruction of views; severity; balancing of interests
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Paul and Victoria Rindfleish (Applicants) Jordan and Pin-Hua Chen Smith (Respondents)
Representation:	Applicants: P & V Rindfleish (Litigants in person) Respondents: J & P Smith (Litigants in person)
File Number(s):	2017/188208

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 s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking to reduce the height of a row of trees growing on the respondents’ adjoining Peakhurst Heights property to a height which the Court considers restores their views of Gannons Park Reserve. They request the annual maintenance of the trees to the height determined by the Court.

2. The respondents state they would agree to prune trees T1-T5 to a height of 2.8m above ground level and trees T6 and T7 to 4m; they would agree to annual pruning to these heights. The respondents’ primary objective is to maintain the privacy the trees afford to their backyard, dwelling, and especially their pool.

3. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.

4. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge, and if so, do they reach a height of at least 2.5m above ground level?

5. The trees are a row of seven Melaleuca linariifolia (Snow in Summer) planted by the previous owners of the respondents’ property in about 2010. The trees are growing along the southern side boundary of the respondents’ backyard. During the on-site hearing, the trees were measured with height sticks. Trees 1-5 range in height from 3.2m to 3.4m; trees 6 and 7 are on average, about 4.3m tall.

6. Given the species, arrangement, spacings and tree heights, I am satisfied that the seven trees are trees to which Part 2A applies.

7. In accordance with s 14E(1) of the Trees Act, I am satisfied that the applicants have attempted to reach agreement with the neighbours. Both parties have identified the history of requests and pruning events since the respondents purchased their property in 2014.

8. 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.

9. The applicants have nominated 13 viewing positions (V1-V13) from three windows (W1-W3) of their dwelling. All windows face north-northwest.

10. Window 1 (W1) is at the north-western end of the sunroom at the rear of the applicants’ dwelling. The applicants have nominated five viewing locations which I understand to include the range of positions in which one might stand and look out that window. The applicants contend that they used to be able to see the playing fields in the gully of the nearby bushland reserve but the lower part of the reserve is now obscured by the respondents’ trees.

11. From standing throughout that section of the room, I observed the nearby native trees as well as the upper portion of the vegetated bushland reserve along the opposing ridge and down the slope, above the respondents’ trees. I accept that lower portions of the reserve are obscured by T1-T5. From this end of the sunroom, the view to the reserve to the northwest is obscured partly by the neighbouring dwelling and partly by a clump of palms growing on the applicants’ property. Also in the viewing corridor from W1 are trees, including a Jacaranda, on the property which adjoins the other side of the respondents’ property. There is also another row of melaleuca along that common boundary.

12. Viewing positions V6-9 are shown through W2. This is the window at the north-eastern end of the sunroom. Given the orientation and positioning of the applicants’ dwelling on their land, this window is closest to the respondents’ dwelling. I am satisfied that trees T6 and T7 contribute to the obstruction of the view of the reserve from this window.

13. The other viewing locations (V10-13) are through W3, the kitchen window. The sunroom adjoins to the north of the kitchen/ dining room. Standing at the kitchen sink and looking through W3 and W1, the views are similar to those from W1.

14. In determining applications about obstruction of views, 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.

15. The first step considers the nature of the view – whether the view is of iconic structures (such as the Opera House or Harbour Bridge), water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The view in question could be described as a medium range to a more distant district view of a natural gully retained as a bushland reserve which is fringed by residential development. Absent the respondents’ trees, the view is a partial view constrained by the applicants’ palms and other trees on other properties.

16. The second step considers the location from which the view is seen – across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. In this case the views were assessed from standing positions although prior to the planting of the trees, sitting views of the gully may have been available through W1 and W2.The applicants’ block of land is triangular in shape therefore the common boundary could arguably be considered the applicants’ rear boundary although the trees are along the respondents’ side boundary.

17. The third step considers the use of the rooms from which the views may be affected – views from living areas being rated more highly than views from bedrooms/ service areas. The rooms from which the views are affected are both rooms which would be in use most of the day and evening. The arrangement of the furniture in the sunroom would suggest that the western end is used more frequently than the eastern end.

18. Helpfully, the Planning Principle includes a qualitative scale of impact ranging from negligible, to minor, moderate, severe to devastating. In a number of decisions, the Court has considered the dictionary meaning of ‘severe’. Perhaps the most apposite to ‘hedge’ cases are the words ‘extreme’ or ‘harsh’. Thus the legislature has set a high bar in using the word ‘severely’ in Part 2A of the Trees Act.

Findings

19. Having had the benefit of the site inspection I am not satisfied that the obstruction of views of the reserve through W1 and W3 by trees T1-T5 is severe; in my opinion the obstruction is moderate as a reasonable portion of the bushland can be seen through these windows. Therefore as s 14E(2)(a)(ii) is not met for these trees, the Court has no jurisdiction to make any orders for any interference with them by either party. However, this does not prevent the respondents from pruning their own trees, or if required, obtaining permission from Georges River Council, to prune their own trees.

20. I am satisfied that T6 and T7 are severely obstructing views through W2. This requires consideration of s 14E(2)(b) and the inherent balancing of interests. In doing this, the Court must consider relevant matters in s 14F of the Trees Act. The following subsections are noted:

(a)   Location of trees: W3 is close to T6 and T7 and to the respondents’ dwelling; these trees afford the respondents with most of their privacy which is why they have been maintained at a higher level than T1-T5.

(c)   The trees have grown to their height since the applicants purchased their property in 1972. The trees were at least their current height when the respondents purchased their property in 2014.

(f)   The trees have no particular historical, cultural, social or scientific value, but are likely to make some contribution to biodiversity (g).

(h)   The trees contribute to the natural landscape and to the scenic value of the land on which they are situated but have no intrinsic value to public amenity (i).

(k)   Pruning: Photographs in the respondents evidence (Exhibit 1) show the extent to which the applicants have pruned the trees in September 2014; the evidence on the trees indicated severe past pruning to between 1.6 and 1.8m above ground level. While the trees have recovered from this harsh pruning, some moderate pruning into healthy green foliage would not unduly stress the trees. The respondents’ suggested 4m for T6 and T7 would be tolerated by the trees.

(l)   The trees provide privacy to the respondents’ pool, back yard and part of their dwelling. Absent the trees, the applicants would look directly onto the pool from all three nominated windows.

(m)   Other obstructions: As stated previously, beyond T6 and T7, and therefore between W2 and the gully/ reserve are a number of other trees, including a well-established Jacaranda and another row of Melaleuca. It is therefore unlikely that any substantial reduction in the height of T6 and T7 would provide any significant view of the lower parts of the reserve.

(n)   Actions of the parties: Both parties have pruned the trees in the past. The respondent has pruned the trees to 4m earlier this year and has agreed to do this on an annual basis.

(p)   The trees are evergreen.

(q)   Nature and extent of the remaining view: While a portion of the view of the bushland reserve is obstructed by T6 and T7, the mid-upper portions of the reserve are still visible through W1 and W2.

21. Having considered the matters in s 14F which assist in determining the balancing of interests in s 14E(2)(b), I have determined not to make any orders for any intervention with T6 and T7. That is, I find s 14E(2)(b) not satisfied in the applicants’ favour. The principal reasons for coming to this conclusion are that: pruning the trees to a substantially lower level is unlikely to restore views of the gully because other trees located on other properties or not included in this application are obstructing the view; given the proximity of W2 to the respondents’ dwelling, any substantial pruning would compromise the privacy of both parties, but especially the respondents’ privacy (pool and dwelling); and the view, while moderately affected by T1-5 is available from other areas of the applicants’ dwelling.

22. While I note the respondents’ offer to prune the trees, these are not orders I have the jurisdiction to make. As such the Orders of the Court are:

1. The application is dismissed.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 25 September 2017