Simon v Goltsman

[2021] NSWLEC 1069

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Simon v Goltsman [2021] NSWLEC 1069

Hearing dates:

28 October 2020

Date of orders:

16 February 2021

Decision date:

16 February 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted.

(2) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the eight Leighton Green Cypress (trees 1–8 in Mr Jackson’s report of 28/09/2020) forming a hedge along their rear boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondents are to give the applicant at least 2 days’ notice of the works.

(4) The applicant is to allow any access required to their property for the purpose of cleaning up debris.

(5) Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 4 metres in height at maturity.

(6) The exhibits are returned except for Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of sunlight and views – whether the obstruction is severe – whether the applicant had access to sunlight and views – whether access to sunlight and views resulted from non-compliance with conditions of development consent – whether the extent of obstruction has increased since the applicant has owned the property – privacy and other benefits – avoiding adverse impacts to amenity

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Uniform Civil Procedure Rules 2005

Woollahra Development Control Plan 2015

Cases Cited:

Drewett v Best [2010] NSWLEC 1305

McDougall v Philip [2011] NSWLEC 1280

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

Texts Cited:

2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy

Category:

Principal judgment

Parties:

Charlotte Simon (Applicant)
Laura Goltsman (First Respondent)
Joseph Goltsman (Second Respondent)

Representation:

Counsel
C Simon (Litigant in Person) (Applicant)
A Boskovitz (Solicitor) (Respondents)

Solicitors
Boskovitz Lawyers (Respondents)

File Number(s):

2020/184275

Publication restriction:

No

Judgment

Background to the application

1. Charlotte Simon (‘the applicant’) purchased her Vaucluse property in 2014, at which time there was a cypress hedge next door. Over the ensuing years as the hedge grew, she became concerned that it was obstructing her views and sunlight. She wrote to her neighbours, Laura Goltsman and Joseph Goltsman (‘the respondents’) in August 2018. She received no response. In 2020 Ms Simon applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the hedge to be pruned to a height of 2.7 metres as per expert advice she received.

2. The Goltsmans refute that the trees in their hedge severely obstruct Ms Simon’s views and sunlight. They also refute that she had greater access to sunlight and views when she purchased in 2014. Nevertheless, they suggested alternative orders to reduce the hedge’s height to 7.7 metres.

Framework for this decision

3. For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The hearing

4. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

5. No experts were required to give evidence at the hearing. The Court had the following reports filed by the parties:

• Shadow diagrams by Deneb Design, 27/06/2019 (Applicant).

• Arboricultural report by Ross Jackson, of Jacksons Nature Works, 28/09/2020 (‘the Jackson report’) (Exhibit 2, Respondents).

• Planning report by Paro Consulting, September 2020 (‘the Paro report’) (Exhibit 3, Respondents).

6. The applicant’s shadow diagrams purport to show the impact of the hedge in diagrams that are the ‘View From Sun (VFS)’. The diagrams are not presented within the format of an expert witness report, nor is there any declaration from the designer who prepared the diagrams acknowledging the Expert Witness Code of Conduct in the Uniform Civil Procedure Rules 2005 (‘the UCPR’).

7. Mr Jackson’s report includes a statement that he agrees to be bound by the UCPR’s Expert Witness Code of Conduct, but his report does not comply with the Code of Conduct, as it does not include all required contents.

8. The Paro report does not meet the requirements of the Expert Witness Code of Conduct. The author is not named; their qualifications are not provided. There is no acknowledgement of the Expert Witness Code of Conduct. (After the hearing, Mr Boskovitz sent through a letter from the report’s author.) It is not clear if the author visited the site.

9. These may seem as trivial complaints from the bench in a Class 2 tree dispute, a jurisdiction that was shaped to enable self-representation with minimal requirement for expert evidence. Indeed, the Court frequently provides a flexible approach to evidence in tree disputes. However, where a party engages legal representation, and obtains expert reports from planners and arboriculturists who assert their experience in the Court, the bar might be raised.

Trees that are the subject of the application

10. The application shows a hedge of 13 trees: nine on the respondents’ property along the common boundary, with two more trees extending the hedge at each end along the respondents’ side boundaries. In fact, trees at the north-eastern end are on another property that is adjacent to the respondents’ property. The owner of those trees is not a party to these proceedings. The trees belonging to the respondents are nine cypress, all of which appear to be adjacent to the common boundary. As a result, the tree numbering used in the application is somewhat redundant, and now confusing. Therefore, I will use in this judgment the tree numbering used in the Jackson report. He numbers the trees 1 to 9, beginning at the south-western corner of the respondents’ property and extending along their rear boundary, which is the common boundary with the applicant. Mr Jackson identified trees 1–8, which are closely planted in a continuous row, as Leighton Green Cypress (Cupressus × leylandii ‘Leighton Green’). Tree 9, which Mr Jackson identified as Italian Cypress (Cupressus sempervirens) is further along the boundary, its stem some 4 metres from the nearest Leighton Green Cypress and its crown separated from the others by 2 metres.

11. Further confusion arose in the respondents’ alternative orders and their expert reports. Their alternative orders included (1a) the removal of the “Northern most Cupresocyparis Leylandii” [sic] (Mr Jackson’s tree 8). Mr Boskovitz submitted for the respondents that they are happy to remove tree 9 (the Italian Cypress). The respondents’ planning report (Paro Consulting, Exhibit 3) states that the respondents are “…offering to remove the north most tree within the row of hedges…” The report includes a copy of a photograph of the trees from the Jackson report with an arrow showing the proposed removal of tree 8.

Trees 1­–8 form a hedge

12. It appears obvious, and is not contested, that all nine trees were planted. Mr Jackson wrote on page 4 of his report that tree 9 is not part of the hedge because it is spatially separated from the other eight trees. I accept this. His photograph shows that both tree 8 and tree 9 have healthy green foliage extending down their sides that face each other across the 2-metre gap. This shows that the gap between the trees does not result from the recent removal of another tree in the hedge; rather, the trees have grown like this for many years, with tree 9 physically separated from the others.

13. Trees 1–8 are closely planted with their foliage forming one continuous dense screen along the boundary. They are planted so as to form a hedge. According to Mr Jackson, who measured them with a height pole, they are 9.2 metres tall.

The applicant made reasonable effort

14. Ms Simon wrote to the Goltsmans in 2018 but received no response. The Goltsmans say they tried ringing her number after receiving her letter but got no answer. After receiving a copy of Ms Simon’s application, they wrote via their solicitor to Ms Simon, in July 2020, explaining why they thought her application had no hope, and they offered to prune the hedge 1–1.5 metres below its height at that time. Mr Boskovitz, representing the Goltsmans, suggested it was the respondents who made all the effort.

15. I find Ms Simon’s effort was reasonable. It was reasonable to apply to the Court having received no response to a written letter. It was reasonable to continue with her application considering the content of the respondents’ subsequent correspondence, in which they outlined their arguments against her case and their limited offer that would provide her with little if any relief on the issue of sunlight, which was her primary concern. It seemed clear to Ms Simon that the respondents were not willing to negotiate beyond their stated position.

The trees severely obstruct sunlight to the applicant’s dwelling

16. For applications involving sunlight obstruction, the Court must be satisfied that the trees are severely obstructing sunlight to a window of the applicant’s dwelling. Pursuant to s 3(1) of the Trees Act, ‘window’ includes a skylight.

17. The respondents’ property faces approximately northwest, to their street frontage. The trees grow along their rear boundary. The applicant has no street frontage, but the common boundary shared with the respondents might be regarded as their side boundary. The hedge (trees 1–8) extends beyond the north-eastern end of the applicant’s dwelling, such that trees in the hedge are not only to the northwest of windows on this side of the dwelling, they are also directly north of those windows.

18. The Paro report states on page 24:

“The DCP stipulates firstly that the control applies to “north facing windows”. The Woollahra DCP defines “north facing windows” as “the orientation range within 20° west and 30° east of true solar north”.

It appears the side west facing windows face 60° west of true solar north, which fall well outside the definition of north facing. The rear north facing windows are 30° east of true solar north and therefore are defined as “north facing windows”.

Therefore, the north facing habitable room bedroom to the upper level receives 3 hours of sunlight between 9am to 3pm on 21 June over a portion of its surface. The side elevation west facing ground and first floor level windows are not afforded any sunlight protection under the DCP.”

19. The longest side of the applicant’s dwelling, where most of the dwelling’s windows are situated, faces approximately northwest, parallel with, and towards the common boundary. As a result of the above assessment within the Paro report, its author has deemed all these to be west-facing windows. Therefore, according to the author, the only north-facing windows are those on the northeast ‘end’ of the applicant’s dwelling, where the shorter dimension results in fewer windows. The report’s author then assesses the shading on a ‘north-facing’ window, to conclude that it receives the amount of sunlight required by the Woollahra Development Control Plan 2015 (‘the DCP’). Mr Boskovitz repeated these findings during the hearing, arguing that the Court cannot find a severe obstruction of the applicant’s ‘west-facing windows’.

20. I do not accept this reasoning. Firstly, the Trees Act only requires that the Court be satisfied that the trees cause a severe obstruction of sunlight to a window in the applicant’s dwelling. Severity is subjective. While a Development Control Plan might provide some useful guidance when assessing the severity of obstruction, it cannot be solely relied upon. The DCP guidelines were developed for a specific purpose. The Trees Act does not refer to those guidelines, but relies upon the Court to consider all the relevant matters that might contribute to the obstruction of sunlight, and its severity.

21. Secondly, the orientation of the applicant’s dwelling appears 35-40° east of north (and therefore 50-55° west of north), and therefore has no north-facing windows according to the reasoning in the Paro report. Yet most of the winter sunlight obviously enters the applicant’s dwelling through the windows along its north-western side. It would be unreasonable to preclude consideration of this sunlight in determining this application.

22. Mr Boskovitz likened the situation to that found in Drewett v Best [2010] NSWLEC 1305 at [17], but those windows were clearly described as facing southwest.

23. The applicant’s windows are W1-W3 on the ground floor, being full-height windows facing the common boundary, and W4-W9, being skylights into the ceiling of the ground floor along this north-western side. This section of the dwelling, with all nine windows, is approximately 1.55 metres from the common boundary. Photographs show trees 1–8 growing well above the boundary fence, shading these windows. Foliage of the trees extends across the boundary. Despite the findings of the Paro report, and Mr Boskovitz’ submissions to the contrary, aerial photographs clearly show the trees in the hedge to be directly north of these nine windows. Mr Boskovitz argued that the shadow diagrams could not be relied upon, because they include the shadowing of trees which are now known to be on other land, not the respondents’.

24. The applicant’s photographs alone are enough to satisfy me that trees in the hedge obstruct sunlight to these nine windows, and that the obstruction is severe. The windows are fully or extensively shaded by the trees not only in mid-winter, but for several months of the year.

25. On the basis of the above, I find that all trees in the hedge contribute to a severe obstruction of the applicant’s windows.

The trees severely obstruct a view from the applicant’s dwelling

26. The claimed view loss within the application is from the applicant’s first-floor master bedroom and its balcony, toward Sydney Harbour to the north and northwest. Ms Simon claimed that she had partial water views from here when she first occupied her dwelling. She included in her application a photograph (copied below) from the rooftop above, showing part of that water view still available from the higher viewpoint.

27. The Goltsmans’ principal rebuttal of Ms Simon’s view loss application focussed on a planning issue concerning a condition of consent for her dwelling, so I will consider this first. Ms Goltsman’s affidavit (Exhibit 1) included considerable material showing elements of the history of development consents for both the applicant’s and the respondents’ properties. Relevant here is the material showing a planter box and screen along the applicant’s first-floor balcony. Mr Boskovitz argued that Ms Simon removed the planter box and screen contrary to the conditions of consent that applied to her dwelling at the time of the items’ removal, and still apply. Were the planter box and screen still in place, he opined, Ms Simon would not have any view of the harbour from the bedroom and balcony.

28. The planter box and screen were required for privacy, preventing or limiting potential overlooking issues from the applicant’s dwelling to the respondents’. Mr Boskovitz also stressed the increased need for the hedge’s screening since those items were removed.

29. Ms Simon provided some explanation for removal of the planter box – its waterproofing failed and was removed. The screen was removed because it was climbable.

30. If the Goltsmans wish to press their complaint regarding Ms Simon’s missing planter box and screen, that is a matter for them to take to Woollahra Municipal Council. It is not something I can address here. However, if I take their submissions as correct, I must consider whether the view obstruction caused by the hedge would be severe were the planter box and screen still in place. The photograph below is copied from the Paro report, where it is stated that the photograph is taken from a standing position in the applicant’s master bedroom.

31. The author of the Paro report has added notation and red lines to the photograph indicating: the height of the screen required by the consent condition, and subsequently removed; and the height of a privacy screen that would be required by current planning controls, should the applicant be obtaining consent for the balcony now. I have highlighted the former (the line indicating the height of the removed screen) with a yellow dashed line.

32. Notation on the right side of the above photograph points to a small area highlighted in orange, with the words: “Glimpses of views obstructed by three trees”, apparently referring to the water view seen in Ms Simon’s recent photograph from the roof above.

33. The conclusion reached by the author of the Paro report, and reasserted by Mr Boskovitz, is that the impact of the cypress hedge on the view, above the removed screen (the yellow dashed line), is not significant. I do not accept this. Without the trees, and with the screen in place, the view in its entirety would include part of the harbour, the suburban landscape of rooftops and trees, and the sky above. While the water view might be the most highly valued part of a view, as per the hierarchy of view values in the view-sharing principle found in Tenacity Consulting v Waringah [2004] NSWLEC 140 (‘Tenacity’), here it would be a small part of an overall view. The photograph above shows that the trees obstruct the entirety of that view (water, landscape and sky) visible above the removed screen from the bedroom.

34. The photograph below, also copied from the Paro report, shows the view from a sitting position in the bedroom, again with my addition of a yellow dashed line to highlight the red line in the Paro report indicating the top of the removed screen. 

35. From a sitting position in the bedroom, the hedge obstructs, above the removed screen, all but a small portion of the sky view.

36. To my mind, these two photographs in the Paro report demonstrate that the removed screen would have obstructed only a small part of the outlook from the applicant’s bedroom, leaving a significant outlook that included the suburban landscape, the harbour and the sky. The photographs further demonstrate that this pleasant outlook is obstructed by the cypress hedge – entirely from a standing position, and almost entirely from a sitting position. Using the language of Tenacity, the view loss is more than negligible, minor or moderate – it is severe. I am satisfied that trees in the respondents’ hedge are severely obstructing a view from the applicant’s dwelling.

Should orders be made to interfere with the hedge?

37. The hedge severely obstructs both sunlight and views. The next requirement, at s 14E(2)(b), is to consider the reasons for and against interfering with the trees. This is assisted by the matters listed at s 14F. Particularly relevant here are issues including: the objectives of the hedge planting such as landscaping and privacy, benefits provided by the hedge, any other statutory controls over the planting, and to what extent the applicant had access to sunlight and views during her occupancy of the dwelling. The relevant matters at s 14F are considered roughly in order below.

Location of the trees

38. The hedge is close to the common boundary, forming a dense screen along this section of the boundary, less than two metres from the applicant’s dwelling. It is to the north of windows that allow winter sunlight into the applicant’s dwelling. Its foliage extends across the boundary.

Previous height of the trees

39. The jurisdiction of Part 2A of the Trees Act was never intended to provide access to sunlight or a view not previously available to the applicant – see McDougall v Philip [2011] NSWLEC 1280 at [18]–[25]. The hedge was present when Ms Simon purchased her property in December 2014 and when she renovated her dwelling. A photograph included in the Paro report, and copied below, is apparently from 2014 promotional material for the sale of the property then about to be purchased by Ms Simon.

40. The screen on the first-floor balcony can be seen on the right in the above photograph. In her application Ms Simon wrote that the trees were approximately 3 metres tall when she purchased her property. If I rely on the photo above, it is more likely that the trees were 4–5 metres tall in 2014. The respondents submitted that the trees were planted in 2003, and that they are now 9.2 metres tall. In the Paro report, it is suggested that they were 6 metres tall prior to the applicant’s purchase, but this is not supported by evidence. Based on the photograph above, I find it most likely that the trees were no taller than 5 metres in December 2014. At that time, a planter box prevented access to the edge of the balcony closest to the boundary, and a screen reaching 1.5 metres above floor level limited the view. Nevertheless, as can be seen in the photographs further above, an open outlook of sky has been replaced by a dense screen of foliage that prevents any outlook. It is this view that I find is severely obstructed, and it is a view that was available to the applicant.

41. It is also clear, from the photographs above, that the amount of sunlight reaching the applicant’s windows must be severely diminished for many months of the year when compared with the same months after she first purchased, as a result of the trees’ growth. While the windows in her application to the Court might not directly face north, they are the windows that allow most of the northern sunlight into her dwelling from autumn through to spring. When shorter, the trees might have blocked some of that light during winter, but the obstruction then was unlikely to be severe, as it is now.

No consent required

42. Pruning or removing the trees would not require a permit from Woollahra Municipal Council, nor would consent be required by any other legislation.

Other relevant consent conditions

43. The respondents made extensive submissions regarding the development consent condition that required the planter box and screen on the applicant’s first-floor balcony. The condition related to development completed before Ms Simon purchased the property. Mr Boskovitz argued that the condition has not been revoked, that it still applies, and that Ms Simon has illegally removed these structures. Ms Simon stated that she received verbal approval to remove the structures, after she found the planter box’s waterproofing had failed and the screen was climbable. If that were so, argued Mr Boskovitz, she would need to replace the screen with an even taller one to meet current planning requirements. Under these proceedings, it is not the Court’s role to make orders to correct any non-compliance with consent conditions. I found above that the applicant’s view has become severely obstructed by the hedge, regardless of the presence or absence of the planter box and screen. Therefore the only relevance of these structures to this decision might be their potential contribution to privacy, which I will come to later.

44. The Goltsmans provided material relating to their own development consents, including approved plans that noted the presence of trees along their rear boundary. I was not shown anywhere that these trees, and their maintenance, were a condition of consent. However, if the trees were a subject of a consent condition, any orders made by the Court under the current proceedings have effect despite any other consent or authorisation required by such a condition (s 6(3) of the Trees Act).

Value and contribution of the trees

45. The trees have no historical, cultural, social or scientific value. While birds and possums might nest in them, they make no significant contribution to the local ecosystem and biodiversity. They make some contribution to the respondents’ landscape, providing them with some amenity, but they have little or no value to public amenity. There is no evidence that their removal would impact soil stability or the water table.

Impact of pruning the trees

46. In his report, Mr Jackson wrote that cypress trees must not be pruned into old wood – that pruning must be limited to branches that have grown in the last 1.5 years. He wrote that pruning to the applicant’s proposed height of 2.7 metres “…is not an acceptable [sic] as it will be pruning into old wood where no regrowth will occur and the tree will then have dieback”. He observed that new growth of these trees is limited to the top 1–1.5 metres, and thus concluded that the lowest acceptable pruning height is 7.7 metres. In the respondents’ alternative orders, this is the height at which the trees would be pruned and maintained. Mr Boskovitz argued that the trees must not be pruned any lower, as Mr Jackson has provided uncontested evidence that this would ruin the trees. This cultivar of cypress makes regular appearances in tree dispute proceedings in this Court, so I have some experience seeing it in its various forms – unpruned, regularly pruned and maintained, and severely pruned after years of neglect. In the latter case, while it may reshoot over time, it spends many years with bare branches, all but dead in appearance, and rarely recovers or establishes the formal and uniform look for which it is usually planted. This would be the unattractive result here, should these trees be pruned to 2.7 metres as pleaded by the applicant, or to less than 5 metres in height as was likely their state when Ms Simon purchased her property.

Privacy

47. The Goltsmans value the trees for the privacy provided by this dense screen of foliage. Throughout the Paro report the author repeats that the privacy screen originally on the applicant’s balcony was required to prevent overlooking to the respondents’ “first floor private terrace”. Ms Simon argued that the respondents had no consent to use that part of their dwelling and that they had illegally constructed access to the terrace. Mr Boskovitz submitted that the respondents only use the access for maintenance and therefore they did not wish to press the issue of privacy to that part of their dwelling. Rather, their concern was for privacy to bedroom windows. Ms Simon argued that those bedrooms receive little use. She understood that the requirement for a privacy screen on her balcony was primarily to prevent overlooking to the respondents’ outdoor area, which has since been covered by a roof structure.

48. I find that the respondents would not suffer significant loss of privacy if the hedge’s screening were reduced or removed. Photographs show that a roof structure covers most of the outdoor area in their rear yard. Privacy in bedrooms would be easily obtained through the use of curtains as needed. The relatively minor advantages to the respondents’ perception of privacy do not justify a 9-metre screen along the common boundary, close to the applicant’s dwelling, nor the 7.7-metre outcome they propose.

49. Should the respondents want the applicant’s screen and planter box replaced, as they say is required, they must find the appropriate avenue.

Other obstructions of sunlight or views

50. Other, more distant trees might contribute to some obstruction of sunlight or views, but it is the respondents’ hedge that causes the principal obstruction.

Steps taken by the parties

51. Ms Simon lived upstairs at her dwelling while renovating downstairs. As a result, she said she did not at first notice the impacts of the trees’ growth on sunlight. When she did, she wrote to the respondents. Receiving no response, she applied to the Court.

52. The Goltsmans tried calling Ms Simon after receiving her letter, but said (Ms Goltsman’s affidavit, Exhibit 1): “…she did not answer and I received no further communications.” After they received a copy of Ms Simon’s application to the Court, the Goltsmans engaged Mr Boskovitz to write to Ms Simon, informing her that her application was flawed, explaining why this was so, and stating the Goltsmans’ offer to prune the hedge to reduce its height by 1–1.5 metres. Given the determined clarity of their position, which would provide little relief to Ms Simon, it is hardly surprising that she persisted with her application.

Extent of the sunlight obstruction

53. Ms Simon provided shadow diagrams prepared by Deneb Design. The diagrams are prepared so that they purport to show the ‘view from the sun’, with the viewpoint for each diagram being from the sun’s position in the sky at different times of the day on the winter solstice. The trees’ height in the diagrams is based on Ms Simon’s estimate of 7.2 metres. The diagrams show considerable shadowing on the applicant’s dwelling caused by trees.

54. Mr Boskovitz pointed out that the diagrams include trees in the application that are now known to be on other property, and are not part of this hedge. I accept this to be the case. Due to the inaccuracy of the depiction of the hedge in these shadow diagrams, in both its height and its extent, I cannot rely on them as an accurate indicator of sunlight loss.

55. On page 18 of the Paro report, the author wrote: “The ground level western elevation windows does not [sic] obtain any significant midwinter solar access as it is overshadowed by the existing 2.15 metre boundary wall.” On the contrary, the windows along this wall of the applicant’s dwelling allow northern sunlight into the dwelling, or would do so if not for the hedge. The boundary wall may obstruct some of this in mid-winter, however it is only 2.15 metres tall. The 9.2-metre-tall hedge, with its foliage extending across the boundary, clearly obstructs northern sunlight to these windows from autumn through to spring. The number of hours has not been quantified, but I am satisfied that the sunlight obstruction is so significant to be classed as severe, based on the following: the hedge provides a dense screen that is 9.2 metres tall less than 2 metres from the applicant’s ground-floor windows through which northern sunlight would enter the dwelling from autumn through to spring.

The trees are evergreen

56. Because the trees are evergreen, the dense screen of their foliage remains throughout the year.

The nature of the views

57. I have described the view above. While there might be glimpses of water if the view was not obstructed by the hedge, the principal view is an open outlook of sky, with the suburban landscape below. Due to the hedge, there is little or none of that view remaining.

Parts of the dwelling affected

58. Trees in the hedge obstruct the view from Ms Simon’s first-floor master bedroom. Steps 2 and 3 of Tenacity’s view-sharing principle address this issue.

“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.”

59. Ms Simon’s property has no street frontage, but the common boundary along which the trees grow might be regarded as her side boundary. It is the Goltsmans’ rear boundary. The trees are in the direction of Ms Simon’s principal view. To my mind, this element of Tenacity’s view-sharing principle is more relevant to buildings, less so to hedges. Buildings have a purpose, and the Tenacity principle’s aim is to minimise view obstruction while achieving the building’s purpose. The main purpose of hedges such as this, on the other hand, is to create a screen. While this can be important for privacy, that issue is dealt with elsewhere in this judgment. If the common boundary is Ms Simon’s side boundary, I do not consider that significant in making this decision.

60. Photographs show the view to be severely obstructed from both standing and sitting positions.

61. According to Tenacity’s third step, “…the impact on views from living areas is more significant than from bedrooms or service areas.” A view lost from Ms Simon’s master bedroom might be less significant than one lost from her lounge or dining room, and more significant that one lost from her laundry. I note the first two sentences of this third step: “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.” Taking the whole of Ms Simon’s property into consideration, the obstructed view might be the best view available to her. She has no such view from her ground-floor living areas.

Orders should be made

62. Having considered the relevant matters, I find that orders should be made to restore Ms Simon’s access to sunlight and views, for the following reasons.

• Trees in the hedge are 9.2 metres tall, to the north of Ms Simon’s dwelling. They create a dense screen that is less than 2 metres from her dwelling.

• The trees cause a severe obstruction of sunlight to Ms Simon’s windows during that part of the year when sunlight access might be most desired. The trees did not cause a severe sunlight obstruction at the time Ms Simon purchased her property.

• The trees cause a severe obstruction of the view from Ms Simon’s master bedroom and balcony. The view obstruction was not severe when Ms Simon purchased her property.

• The obstruction of sunlight and views would be severe regardless of the presence or absence of the planter box and screen present on the first-floor balcony at the time Ms Simon purchased her property.

• The primary benefit of the hedge to the Goltsmans is privacy, but this benefit is relatively minor, especially when compared with the trees’ impacts to Ms Simon’s view and sunlight access.

The nature of the orders

63. It would be reasonable to restore Ms Simon’s access to sunlight and views to the situation that existed at the time she purchased her property. I found earlier that the trees then were, most likely, 4–5 metres tall. To maintain the trees at a height of 5 metres, they would first need to be pruned below that height. That is, initial pruning would need to reduce their height by approximately one half: from 9.2 metres to less than 5 metres. The result would be unsightly. The evidence of the respondents’ arborist is that pruning more than 1.5 metres from the tops of the trees would lead to their decline. Such an outcome is not in the interest of either party. A preferable outcome in the long term would be to remove the trees, with the potential for the respondents to replace them if they wish. Any replacement planting should be limited to the approximate height of the hedge in 2014, preferably with a species that does not grow taller so as to minimise maintenance requirements.

64. While these orders might result in the applicant receiving greater access to sunlight or views than she first had, this is not their intent. Rather, it is the preferred outcome for restoring her sunlight and view access without adversely affecting amenity for both parties.

Orders

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

1. The application is granted.

2. Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the eight Leighton Green Cypress (trees 1–8 in Mr Jackson’s report of 28/09/2020) forming a hedge along their rear boundary, to no more than 50 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondents are to give the applicant at least 2 days’ notice of the works.

4. The applicant is to allow any access required to their property for the purpose of cleaning up debris.

5. Any further hedge planting along the respondents’ rear boundary is to be of a species that grows to no more than 4 metres in height at maturity.

6. The exhibits are returned except for Exhibits A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

16 February 2021 - Replacement of image at [34].

Decision last updated: 16 February 2021