Smart and anor v Mann and anor

[2013] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smart & anor v Mann & anor [2013] NSWLEC 1179
Hearing dates:	24 September 2013
Decision date:	24 September 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; balancing of interests
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Hinde v Anderson & anor [2009] NSWLEC 1148 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	P & S Smart (Applicants) G & L Mann (Respondents)
Representation:	Applicants: P & S Smart (Litigants in person) Respondents: R.J Baxter (Solicitor) Russell J Baxter Solicitor
File Number(s):	20498 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: The applicants purchased their elevated block of land in Tweed Heads West in 1999. The house they built was situated to take advantage of views from the rear of the property to the north through to the east of the distant ocean and coastal landscape - essentially from Tugan to Fingal Head. The front of the property faces the distant Border Ranges to the west.

1. The applicants contend that palm trees planted by the respondents in 2002 severely obstruct both sunlight to windows of their dwelling and views from their dwelling.

1. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal or reduction and subsequent maintenance of the trees to a maximum height of 2.5m.

1. The respondents have removed three of the 13 palms subject to the application and do not wish to take any further action as they value the remaining trees for the privacy they afford their dwelling.

Are the trees planted so as to form a hedge?

1. In applications under Part 2A there are a number of jurisdictional tests that must be satisfied sequentially.

1. The first jurisdictional test is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that have been planted so as to form a hedge.

1. The trees the subject of the application are 13 palms of mixed species planted along the southern and eastern perimeters of the swimming pool at the rear of the respondents' property.

1. Trees 1-3 were Golden Cane Palms removed in response to the lodging of the application before the Court. These trees were located along the southern boundary of the respondents' property - the common boundary between the parties' properties.

1. Tree 4 - a small Majestic Palm remains towards the south-eastern end of the boundary. The remaining trees are a mixture of Golden Cane and Bangalow Palms along the eastern boundary.

1. I am prepared to accept that while the palms do not present as a solid, uniform wall of a hedge in the classic sense, the Court has allowed similar linear and closely spaced plantings of clumping and other palms, particularly in the warmer parts of the State, to be considered as 'being planted so as to form a hedge'. Perhaps with the exception of T4, the palms were planted in the same planting event.

1. In this matter I consider there are three groupings of palms - T5-8, T9-10, and T11-13. Given the spacing between T4 and T5 I consider T4 an individual tree and therefore beyond the jurisdiction of Part 2A.

1. As all trees - T5-T13 are in excess of 2.5m, s 14E(2)(b) applies.

Are the trees severely obstructing sunlight or views?

1. The next relevant test is s 14E(2). This 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.

1. If s 14(2)(a) is satisfied for any of the nominated views or windows, then s 14(2)(b) must be satisfied in the applicants' favour before any orders for any intervention with any of the trees can be made.

Sunlight

1. The applicants contend that early morning sunlight to three north facing windows on the ground floor of their two-storey dwelling is severely obstructed by the respondents' palms.

1. The times specified are from sunrise to 9.00am (W1 - lounge room), sunrise to 9.30am (W2 - family room) and sunrise to 10.00am (family room). These windows receive sunlight for the majority of the rest of the day.

1. W4 is an east-facing window of the family room located beneath a 2m wide deck on the first floor. The applicants contend that this loses about 30% of potential sunlight between sunrise and 8.00am.

Findings - sunlight

1. I am not satisfied on the evidence that there is a severe obstruction of sunlight to any of the nominated windows as a consequence of any of the respondents' trees. The palms closest to those windows have been removed. The closest of those was 5.5-6.0m away and the remaining trees are considerably further away. It is possible that later in the day, trees or structures on the applicants' property may shade one or more of the nominated windows.

1. In considering the usual planning and building controls for solar access and amenity, sunlight in the very early hours of the morning is generally not a consideration. All of the nominated windows (being windows of living areas) would appear to receive well in excess of the general minimum 3 hours of sunlight between the hours of 9.00am-3.00pm on the winter solstice.

1. While there may have been more obstruction of sunlight prior to the removal of the nearby palms there is no evidence that any of the trees to which Part 2A applies are severely obstructing sunlight to windows of the applicants' dwelling and that element of the application is dismissed.

Views

1. There are 13 nominated viewing locations - 7 from the ground floor and 6 from the first floor. All viewing points are from the north and east facing portions of the rear of the applicants' dwelling.

1. The views in contention are views to the north-east of Coolangatta and Tweed Heads across the rear/eastern boundary of the respondents' property.

1. The views to the east are obscured by a hedge and dwelling on the adjoining property to the east.

1. The views to the north of Tugan, the ocean, coastline, Gold Coast airport and environs are unobscured.

1. The nominated viewing points on the ground floor are V1 through W1 (lounge), and V2 (W2), V3(W3), V4 (W4), V5 and V6 - windows and glass doors of the open plan family/dining/kitchen. W1-W3 are oriented to the north, the remaining windows through which views may be seen face east. V 13 is the covered area outside the eastern façade.

1. The respondents' trees generally obstruct the standing and sitting views to the north-east. However as one moves through the house to windows further to the south (such as the kitchen) the angle of the view becomes more acute and constrained by elements of the building and by the property to the east.

1. In regards to the upstairs rooms, these are bedrooms, a study and an ensuite bathroom. V12 is from the deck that extends the full length of the eastern façade of the dwelling.

1. The views from the first floor are generally wider and more panoramic than those available from the ground floor. A smaller proportion of the entire view, (the contended view to the north-east), is obstructed by the respondents' trees. It is possible to see almost the entire panorama from Tugan to Fingal from the upstairs deck.

Findings - views

1. In assessing the severity of a loss of a view, the Court has often had regard to the planning principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. This principle establishes a series of steps in assessing the impact of a development on views from a potentially affected property. The first three of the four assessment steps are relevant to Part 2A view applications.

1. The nature of the views to be affected (step 1) includes ocean views and views of the coastal landscape of Coolangatta and Tweeds Heads; water views are generally more highly valued than land views.

1. Step 2 considers the part of the property from where the views are obtained. Paragraph [27] in Tenacity states in part:

...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.

1. Step 3 considers the extent of the impact. This should be done for the whole of the property and not just for the view that is affected. Generally, views from living areas and kitchens are considered more valued than views from bedrooms. View loss can be considered quantitatively and qualitatively. It is usually more useful to consider the impact qualitatively as negligible, minor, moderate, severe or devastating.

1. Apart from the principle in Tenacity, the Court has also considered the interpretation of the words 'a view'. This is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At [26] Moore SC and Hewett AC state:

26 However, we are of the opinion that the words a view used in s 14 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.

1. Therefore in applying these cases to the matter before me, I am not satisfied that there is any severe obstruction of 'a view' from the upstairs viewing locations. As stated above, the available views are wide and panoramic and while there is some obstruction of the views of Coolangatta and Tweed Heads from some windows, the obstruction of that portion is minor to moderate and certainly not severe.

1. In regards to the downstairs living areas, while the view to the north-east is severely obstructed by the respondents' trees, and therefore s 14E(2)(a)(ii) could be considered satisfied, I am not satisfied, after considering s 14E(2)(b), that any orders should be made for any intervention with the trees. My reasoning is as follows.

1. Section 14E(2)(b) requires the Court to balance the interests of the applicants in removing, preventing or remedying an obstruction against the interests of the trees and the tree owner. This requires consideration of relevant discretionary matters in s 14F of the Act.

1. The relevant matters in this case are:

• While the remaining trees are located on adjoining land, they are not growing on the common boundary but on the rear boundary of the respondents' property. Although the Act makes no distinction as to where the trees are located in terms of its jurisdiction, the relative location is important when the reasonable balancing of interests are considered. In this case, the respondents' eastern boundary adjoins the rear gardens of several other dwellings and the trees are some distance from the applicants' dwelling (s 14F(a)).
• The trees were planted in 2002 after the respondents built their dwelling in 1999 and after the applicants built theirs in 2000. The trees have grown to their current height in that time S 14F(b)(c)).
• The respondents planted the trees in order to screen their pool and dwelling from those dwellings upslope (including the applicants') and those to the east. The palms along the eastern boundary screen views to and from the respondents' main bedroom and bathroom, downstairs living areas and the pool deck (s 14F(h)(l)).
• In regards to pruning or reduction, the Bangalow Palms as single trunked palms cannot be reduced as to do so would kill them however this species will grow above the canopy of the Golden Cane palms and eventually above the applicants' view line. The Golden Cane Palms, as a species of clumping palm, can cope with the removal of individual canes without causing any damage to the whole plant (s 14Fk)(s)).
• The respondents have taken action to remove the palms they considered were causing most concern to the applicants and in doing so have lost a degree of privacy and amenity that those plants afforded their property (s 14F(n)).
• Most significantly, (s 14F(q)), as stated several times, the views to the north of the ocean and coastal landscape are unaffected and available from all of the nominated viewing locations. The north-eastern views are a relatively narrow portion of the whole view.

Conclusions and Orders

1. The applicants' position is that they chose an elevated site on which to build their house and they oriented it on their block to take advantage of the views available at that time. While that cannot be denied, elevated blocks also create issues of privacy and overlooking, particularly when multi-storey dwellings are built. It is unlikely that over ten years, in any urban landscape a view will remain unchanged.

1. The views in contention are a portion of a wide view available to the applicants that still includes ocean and coastline. The remaining trees on the respondents' property are necessary for their privacy. Therefore on balance, I do not find the interests of the applicants outweigh those of the trees or the respondents.

1. However, as in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

1. Therefore on the basis of the foregoing, the Orders of the Court are:

(1)   The application is dismissed.

_________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 26 September 2013