Schutz v Kotsis

[2016] NSWLEC 1026

Land and Environment Court

New South Wales

Medium Neutral Citation:	Schutz v Kotsis [2016] NSWLEC 1026
Hearing dates:	22 January 2016
Date of orders:	22 January 2016
Decision date:	22 January 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Hedge obstruction of views and sunlight; obstruction not yet severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Hornsby Local Environmental Plan 2013.
Cases Cited:	Devile & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Schutz v Kotsis [2010] NSWLEC 1332 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Valdis Schutz (Applicant) Faye Kotsis (Respondent)
Representation:	Applicant: Mr V Schutz (Litigant in person) Respondent: Mr S Deane (Agent)
File Number(s):	20945 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to a height of 2-2.25m of a row of 68 Leyland Cypress trees planted on the adjoining property along part of the common boundary. He also seeks orders for the ongoing maintenance/ hedging of the tops and sides of the trees.

2. The orders are sought on the basis that the trees obstruct sunlight to windows of the applicant’s dwelling and views from his dwelling. The applicant is concerned that as the trees continue to grow the obstruction will increase.

3. The applicant’s Arcadia property is zoned RU4 – Primary Production Small Lots in Hornsby Local Environmental Plan 2013. In 2013 Part 2A of the Trees Act was reviewed and minor amendments made, including land to which Part 2A applies. As a consequence of the amendments, Part 2A now applies to land zoned “rural residential” or land having the substantial character of a zone so designated (s 4(1)(a)). In an earlier decision in a Part 2 application involving the parties in this matter I determined that I was satisfied that the land had the substantial character of ‘rural residential’ (see Schutz v Kotsis [2010] NSWLEC 1332 at [5]).

4. It is common ground that the trees are growing on the adjoining property and were planted so as to form a hedge and remain so. The trees are an average of about 4m tall. Therefore, the trees are trees to which Part 2A applies.

5. 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.

6. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant’s land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.

7. The use of the word ‘are’ in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.

Sunlight

8. The applicant has nominated four windows of two bedrooms located on the north-eastern end of his dwelling. These windows adjoin a covered verandah. The applicant stated that he and his wife sit on the verandah in the early morning to enjoy the view and the morning sun, especially in winter.

9. A photograph taken at 6.51 am on 6 October 2015, included in the application claim form, shows what appear to be shadows cast by trees on the wall and windows of the dwelling. Other photographs show that by 8.15 am the shadows have receded. The photographs also show that the eaves of the house shade about 50% of the area of the windows.

10. The nominated windows are approximately 15m from the common boundary across a wide gravel driveway.

11. I am not satisfied on the evidence before me that any of the trees the subject of the application are severely obstructing sunlight to windows of the applicant’s dwelling. Therefore as s 14E(2)(a)(ii) is not met, the Court’s jurisdiction is not engaged and this element of the application must be dismissed.

Views

12. The nominated viewing points appear to be primarily from the verandah on the north-eastern end of the applicant’s dwelling but may include other parts of the dwelling. The views are distant views of the general landscape to the northeast through to the southeast of the applicant’s dwelling, that is, across the common side boundary.

13. In determining severity of impact, 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. The first step considers the nature of the view, the second the location from which the view is seen. Including views available from the whole of the property, and the third considers the use of the rooms from which the views may be affected. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.

14. The first step considers the nature of the view. For example are the views of ‘iconic’ structures/ landscapes, water/ land-water interface, or district/landscape views; are they whole or partial views.

15. The second step considers from what part of the property the views are obtained. In this case, the views are across a side boundary, from sitting and standing positions. In paragraph [27] in Tenacity, the former Senior Commissioner relevantly states: “…the protection of views across side boundaries is more difficult than the protection of views from front or rear boundaries….Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.”

16. The third step is to assess the level of impact. This should be done across the whole of the property taking into consideration the use of the rooms from which the views are impacted. This step considers the quantitative and qualitative impacts, with the qualitative impact usually more applicable. Paragraph [28] in Tenacity includes a scale of impact from negligible, to minor, moderate, severe, to devastating.

17. The Court has also considered the meaning of ‘a view’ in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state:

26   However, we are of the opinion that the words a view 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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

18. In a number of decisions, the Court has considered the dictionary meaning of ‘severe’. Perhaps the most apposite to ‘hedge’ cases is the word ‘extreme’. Thus the legislature has set a high bar in using the word ‘severely’ in Part 2A of the Trees Act.

19. At the time of the hearing I observed that the distant, district views to the northeast, across the side boundary, were visible through the trees from the north-eastern verandah – from both sitting and standing positions.

20. The applicant’s principal living area is located at the rear/ south-eastern and south-western portion of the dwelling. The front of the house faces north-northwest. There are distant views, albeit inclusive of trees on the applicant’s property and on other adjoining properties, available from the family room and kitchen.

21. In applying the principle in Tenacity, I am not satisfied that any of the trees the subject of the application, are severely obstructing views from the applicant’s dwelling. Therefore this element of the application must also be dismissed.

22. As discussed on the day of the hearing, should the circumstances change the applicant can make another application (see Devile & anor v Frith & anor [2014] NSWLEC 1002).

Orders

23. The Orders of the Court are:

1. The application is dismissed.

__________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 01 February 2016