Land and Environment Court New South Wales

• Medium Neutral Citation: Fardouly v Zeritis Issa v Zeritis [2012] NSWLEC 1355
• Hearing dates: 29 November 2012
• Decision date: 21 December 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application is upheld.

(2) Within 30 days of the date of these orders the respondent, Mr Zeritis, is to obtain three quotes from suitably qualified arborists (minimum AQF level 3) with all necessary insurance for the removal of the 15 Bhutan Cypress trees. The quotes are to be for the removal of the 15 trees to one metre above ground level. If Mr Zeritis wishes to remove the stumps of the trees below this height that is to be quoted separately and is to be entirely at his expense.

(3) Within 35 days of the date of these orders Mr Zeritis is to agree with the Issas on the quote to be selected.

(4) Mr Zeritis is to engage and pay for the arborist selected in (3) to carry out the removal of the 15 trees to one metre above ground level within 60 days of the date of these orders.

(5) On reasonable notice (at least two working days) Mr Fardouly and the Issas are to provide all access required by the contractor for the works to be completed during reasonable hours of the day.

(6) Within 14 days of receipt of a copy of the paid invoice for the works in the approved quote, the Issas are to pay to Mr Zeritis 25% of the quoted amount.

(7) If the Issas do not receive a copy of the paid invoice within 90 days of the date of these orders, (6) lapses.

(8) If trees are again planted along the western boundary of the respondent's property, they are to be maintained at a height not exceeding 3.5 metres.

(9) The exhibits are retained.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; severe obstruction; removal ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: 20937 OF 2012; Mr Michael Fardouly (Applicant); Mr Con Zeritis (Respondent); 20938 OF 2012; Dr Laura Issa (First Applicant); Mr Andre Issa (Second Applicant); Mr Con Zeritis (Respondent)
• Representation: 20937 of 2012; Mr Michael Fardouly (Litigant in person) (Applicant); Mr Con Zeritis (Litigant in person) (Respondent); 20938 of 2012; Dr Laura Issa (Litigant in person) (Applicant); Mr Con Zeritis (Litigant in person) (Respondent)
• File Number(s): 20937 and 20938 of 2012

Judgment

1 COMMISSIONER: Owners of two neighbouring properties in Carss Park say that they have suffered a loss of views as a result of the growth of a hedge located on another neighbour's land. Michael Fardouly, owner of one property, and Laura and Andre Issa, owners of another, have made separate applications to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act"). They seek orders for the trees to be pruned to an acceptable height, if practical, or otherwise removed, to restore views they say they once enjoyed.

2 Mr Con Zeritis is the owner of the land on which the trees grow. He does not want the trees removed and is concerned that pruning to the degree desired by the applicants would have a negative impact on the trees. He doubts the extent of view loss suffered by the applicants and wants to maintain the privacy he says the trees provide.

3 Unable to reach agreement on a suitable outcome to all parties, they now come before the Court at on onsite hearing that, as is usual in such matters, deals with both applications at once. The hearing allowed a thorough inspection of the views from all claimed viewpoints, of the trees from all three properties and of other relevant issues.

4 Leave was granted during the hearing to amend the applications to include sunlight (20938 of 2012) and to alter the number of trees to reflect the situation as observed onsite.

Background

5 Mr Fardouly has owned and lived at his property since 1972. The Issas have lived at their property since 2007. Both applicants say they previously enjoyed views of Botany Bay, Kogarah Bay, the airport and the parkland of Carss Park. Their properties share a side boundary. Their eastern boundaries form a straight line along the rear of their properties, combining to form the entire western boundary of Mr Zeritis' property. Mr Zeritis purchased and moved into his property in 2003. The Zeritis property is to the east and downslope of the applicants. Its western part comprises a driveway and garage. The Zeritis dwelling is on the eastern part of the property, some distance from the common boundary with the applicants. Further downslope and to the east are Carss Park playing fields, Kogarah Bay and, more distant still, Botany Bay. The slope of the land is such that the applicants' dwellings are considerably more elevated than the respondent's.

6 Under Part 2A of the Act, the Court must first be satisfied that the trees form a hedge according to s 14A; secondly that they severely obstruct sunlight or views according to s 14E(2)(a) and finally that the severity and nature of the obstruction is such that it outweighs any reasons not to interfere with the trees (s 14E(2)(b)). Only if all of these jurisdictional tests are met can the Court make any orders.

7 The parties have differing views on the relevance of some issues, such as a verbal agreement regarding pruning that existed between previous property owners, and a covenant on the respondent's property title restricting any buildings to a single storey. Along with a range of matters listed in s 14F of the Act, these are issues that I must consider before determining the applications and making orders as I see fit and of a nature as set out at s 14D.

Fardouly application - onsite view

8 Mr Fardouly clarified at the outset of the hearing that he did not wish to press any claim regarding the obstruction of sunlight to windows.

9 Firstly he took us to his downstairs living room (V1). He says that from here he could once see the city, the airport and Botany Bay. He provided photographs dated 1985 to demonstrate this. He pointed out that the neighbouring hedge now forms a solid screen that almost entirely obstructs the view to the east and northeast, a situation that I observed, although I also pointed out that more distant trees could also be seen to have grown during that period and would at least partially obstruct the view.

10 From an upstairs bedroom (V2) Mr Fardouly again pointed out the obstruction of views to the east and northeast caused by the hedge. Photos from 1985 again showed that he once enjoyed clear views from this position, including, in the distance, views of the water of Botany Bay. Again, I noted that more distant trees have grown since 1985 and would partially interfere with the view. Mr Fardouly also pointed out from here that the lower parts of some trees had no limbs or foliage and therefore did not provide any screening for privacy to the part of the Zeritis property near the boundary. He asked the Court to note that if the trees were removed, there would be no overlooking into the Zeritis dwelling or pool, only into the driveway area.

11 To the north of V2 is another bedroom (V3), used as an office, from which the nature of the views, and the degree of obstruction by the hedge, are similar to those from V2.

12 Mr Fardouly then asked the Court to observe the obstruction of the view from the lower-storey verandah above the pool (V4), from which the hedge obstructs the view. Owing to the elevation of this point the view would also be more filtered by more distant trees than the views from the other points.

Issa application - onsite view

13 Dr Issa took us firstly to the upstairs bedroom (V5) from which she said they used to have filtered views of Botany Bay to the northeast. It could be seen that the hedge formed a solid screen that obstructs most of that view. Dr Issa pointed out from here that reducing the trees' height by half would restore most of the view while maintaining any privacy they provide.

14 The situation from another upstairs bedroom (V4) was similar.

15 While upstairs, Dr Issa took us to a bathroom window (W1) where, she says, sunlight is obstructed by the hedge for about an hour during winter mornings. She also says two trees (T6 and T7) obstruct the view from here (V1).

16 From the downstairs living area (V3) Dr Issa pointed out that the hedge forms a "dense green wall" obstructing all views to the east. When asked to point out the height at which the trees would need to be pruned to restore the views, she pointed to a height that would be approximately 3.5 metres above ground level on the Issa property. It was noted that if all the trees were pruned to this height the trees behind the Fardouly property would need to be 2.5 metres above ground level of that property, which, at its rear boundary, is about one metre above the Issa property.

17 From the kitchen (V2) Dr Issa pointed out that the hedge forms a "wall of green" that entirely blocks the view. It appeared unlikely that there would be any water views from here, but views of the broader landscape would be present. Dr Issa pointed out that parts of the hedge overhang their property.

Onsite view of the Zeritis property

18 The hedge comprises 15 trees, all Bhutan Cypress (Cupressus torulosa). They grow in a raised garden bed behind a sandstone retaining wall along the driveway. Thirteen trees (T1 to T13, from the south) form a row along the western boundary and two (T14 and T15) continue the hedge along the southern boundary from the southwest corner. The tallest trees are about 11 metres tall; some are a bit shorter.

19 Mr Zeritis pointed out that there are no significant views from his property, but I noted that it is much lower than the applicants' properties.

20 At the Zeritis dwelling, the applicants pointed out that other trees within the Zeritis property provide visual screening to the extent that the Cypress make no major contribution to privacy.

21 We stood at a point from which Mr Zeritis had taken a photograph in 2003 and compared the height of the trees now to their height in the photograph. Mr Zeritis says that the photograph shows that the hedge was already quite tall in 2003, well before the Issas arrived.

Submissions

Fardouly

22 Mr Fardouly submits that he had extensive views from his dwelling during the 1970s and '80s. He says the previous owner (Harrison) of the Zeritis property originally had shorter trees along the boundary - trees that did not obstruct the views and did not need to be pruned. That owner then planted the Bhutan Cypress hedge in or around 1995 and made a verbal commitment to Fardouly and others that the trees would be kept pruned. The nature of this agreement was that when the trees reached 3.5 metres in height they would be pruned to 2.5 metres. He says the trees started growing rapidly in about 2001, that they were 6-7 metres tall in 2003 when Zeritis purchased (although he also said they were that height in 2008) and that they are now 11 metres tall. He says in 2003 he asked Mr Zeritis, soon after he moved in, about pruning the trees but has not asked since. He claims that Mr Zeritis had offered a compromise but did not come up with any solution and did not prune the trees. He did not talk with Mr Zeritis again prior to making the application. He says that the previous owner of the Issa property asked for the trees to be pruned but Mr Zeritis refused this request. Mr Fardouly wants the views restored, with at least seven trees (T1-T5, T12 and T15) pruned to 2.5 metres height above his ground level at the boundary.

Issa

23 Dr Issa submits they had views from their dwelling when they purchased in 2007. She tried to talk with Mr Zeritis about the trees before purchasing but was unable to. She says the real estate agent handling the sale informed her that there was an agreement about pruning the trees. She says that Mr Issa talked with Mr Zeritis about the trees a few months after they moved in, that there was an argument, and that they decided then not to discuss the matter any more because it was too difficult. She says that, according to the statutory declaration of the previous owner of their property, Glenda Carson, the trees were 3 metres tall in 2003 when Mr Zeritis purchased, but that soon after they began to grow more rapidly "perhaps because they broke through their pots" and were 10 metres tall in 2007. Dr Issa submits that a covenant on the Zeritis property title, dating from 1961, that restricts any new buildings to a single storey, should mean that nothing on the property should be more than a single storey high, including trees, so as to maintain the views. She says that pruning or removing the trees would affect overlooking only into the Zeritis driveway area, not their dwelling or pool. She says privacy would be better served by smaller trees. She asked the Court to consider the principles set out in Tenacity Consulting v Waringah [2004] NSWLEC 140 regarding views, and submits that the views are to the rear rather than across a side boundary, that they include water views and that they are from living areas.

24 Dr Issa says that she appreciates the trees' value to Mr Zeritis, and that pruning or removing the trees may be expensive. She submits that she and Mr Issa are willing to contribute 25% of the cost of the works, based on there being two applications and that she is willing to share 50/50 the costs arising from her application.

Zeritis

25 Mr Zeritis submits that the trees were present when he purchased in 2003. He says that privacy was important to them as their boundaries are shared with so many neighbours, and that the hedge contributes to that privacy. He disagrees with the applicants about the height of the trees in 2003, saying they were already well established. He says the photo taken from his dwelling demonstrates this. He has no memory of discussing the trees with Mr Fardouly but recalls discussing the trees with Mr Issa in 2007 and saying he would consider pruning them. However he decided not to prune them due to concerns that pruning would damage the trees' form or health. He says the previous owner of his property never pruned the trees. He says that removal of the trees would lower the value of his property. Removal would be expensive, as would replacing them with mature trees, and so, if any orders for pruning or removal were made, the applicants should pay for it as they would benefit. His preference would be to prune the trees rather than remove them. Mr Zeritis says that he too had views when he first moved in, but those views are now blocked by other trees to the east, so the hedge is not the only obstruction to the applicants' views.

The Court can make orders regarding the trees

26 The trees were planted in a row along the boundary. I accept that they were planted so as to form a hedge and that they continue to form a hedge. This is not disputed by the parties. The trees are all more than 2.5 metres tall. Therefore, according to s 14A(1), Part 2A of the Act applies to these trees.

27 I am satisfied that the applicants have made some effort to reach agreement with Mr Zeritis, even though this may have been some time ago.

28 My own observations at the onsite hearing satisfied me that the trees severely obstruct views from the applicants' dwellings. The nature of those views, and other factors that may contribute to the obstruction, will be discussed later. The trees form a solid wall, up to 11 metres tall, against the applicants' rear boundaries. This screen obstructs most of the available views to the east, views that include water. These are the primary views from the applicants' dwellings. Pruning or removing the trees may affect privacy, although it appears that any such impact would be relatively minor. I am satisfied that the applicants' interest in alleviating the severity and nature of the obstruction is sufficient to warrant interference with the trees. Therefore, all the tests at s 14E are met and the Court may make orders.

Matters to be considered (s 14F)

29 S 14F(a). The trees grow in the respondent's property, close to the western boundary that forms the common boundaries with the applicants' properties.

30 S 14F(b). The trees did not exist prior to the applicants' dwellings. The upper storey of the Issa's dwelling was added prior to the trees being planted. The trees existed when the Issas bought their property but did not exist when Mr Fardouly bought his.

31 S 14F(c). The trees have grown to more than 2.5 metres in height during the period Mr Fardouly has occupied his property, but were already more than 2.5 metres tall when the Issas purchased theirs.

32 S 14F(d). Interference with the trees would require a permit under Kogarah Council's Tree Preservation Order.

33 S 14F(e). In 1961 a covenant was placed on the title for the land now owned by Mr Zeritis restricting any buildings to a single storey. There is no mention of trees. Dr Issa submits that the intent of the covenant is to maintain views, so it is implied that it would restrict anything else on the property that may obstruct the view. I do not accept this. If the intent of the covenant was to restrict all things within the property to a certain height it could have stated that. This is a vegetated area. Placing a restriction on a large property such that no trees could grow above the roof height of a single storey dwelling would be out of character with surrounding properties and the local landscape. It appears unlikely that this was the intent of the covenant. Regardless of this, the purpose of the Trees Act is to prevent (or remedy or restrain) the severe obstruction of a view. I see no reason to rely on what may or may not be suggested in a covenant when there is legislation that is clear and available to the applicants.

34 S 14F(f). The trees do not have historical, cultural, social or scientific value.

35 S 14F(g). The trees make little contribution to the local ecosystem.

36 S 14F(h). The trees make a modest contribution to the scenic value of the respondent's land.

37 S 14F(i). The trees make little contribution to public amenity.

38 S 14F(j). Any orders for the trees would not negatively impact soil stability or natural features of the land.

39 S 14F(k). Pruning the trees to the height suggested by the applicants would have a negative impact on the trees. Unlike many trees, Cypress do not reshoot from old wood. Cutting the trees at 3 or 4 metres would leave the trees with square tops with little live foliage, large wounds in the stems and, for some trees, very little foliage as they have few lower limbs. From the applicants' dwellings the trees would look unattractive, with bare, cut limbs exposed at their tops. New growth would be concentrated at remaining growing tips, encouraging the trees to spread further across the boundary. The trees would be likely to decline in health and structure more quickly, as decay may enter the stem via the large wounds.

40 S 14F(l). The trees contribute to the garden design and landscaping of the Zeritis property. They contribute to privacy, although observations during the onsite hearing indicated that the impacts of pruning or removal would be minimal, especially for Mr Zeritis' dwelling and pool. There would be some overlooking of the driveway area. Other vegetation provides screening to the dwelling and pool.

41 S 14F(m). Looking across the broader landscape, it can be seen that many other trees have grown larger since, for instance, the photographs of 1985. The views of 1985 cannot be restored. However there would still be views across the suburban landscape of Carss Park and filtered views of Kogarah Bay, Botany Bay and the airport from both applicants' dwellings. The more distant vegetation filters or partially obstructs some views, whereas the hedge severely obstructs the primary views from both dwellings.

42 S 14F(n). The applicants say they have expressed their concerns about the hedge to Mr Zeritis. Mr Zeritis says he has not pruned the trees because their form or health is likely to be adversely affected.

43 S 14F(o). Firstly, regarding the obstruction of sunlight to the Issa's bathroom window, it is a small window that allegedly loses an hour of sunlight during winter mornings, although no evidence of this was provided. I am not satisfied that such an obstruction occurs, but even if I was satisfied of this it could not be regarded as a severe obstruction. Therefore, that element of the application is dismissed.

44 S 14F(p). Bhutan Cypress is an evergreen species. The obstruction of views occurs throughout the year.

45 S 14F(q). The views from both dwellings potentially include the entire landscape to their east, including Kogarah Bay and Botany Bay, with filtered views to the horizon. In Tenacity Consulting v Waringah [2004] NSWLEC 140, the first step of Roseth SC's four-step assessment process says that "water views are valued more highly than land views". The view from the dwelling is potentially broad. Even with more distant vegetation obstructing parts of that view, I accept that it is potentially a view of high value. The view that remains now is very limited. The Cypress hedge effectively screens the entire central part of the main view from each dwelling.

46 S 14F(r). The view from both sitting and standing positions in the living areas at the rear of both applicants' dwellings is severely obstructed. The second step of Tenacity states that it is more difficult to protect views across side boundaries and therefore, I presume, less realistic than protecting views across rear boundaries. Similarly, protecting views from sitting positions is often less realistic than protecting those from standing positions. I find it would be a reasonable expectation to protect the views that would otherwise be available to both applicants.

47 Tenacity's third step includes assessing the use of rooms from which a view may be lost. "The impact on views from living areas is more significant than from bedrooms or service areas". I find the impact on both applicants to be significant, as views are lost from living areas of both dwellings.

48 S 14F(s). The Issa's offer to pay for a quarter of the cost of any works required by any orders the Court might make is, in my mind, generous. The hedge belongs entirely to Mr Zeritis and is his responsibility. However, good neighbourly relations usually require some give-and-take and in this case Dr Issa shows some appreciation of this. It seems to me that Mr Zeritis, too, appreciates the applicants' concerns but is aware that pruning would damage the trees, something he wishes to avoid, and is reluctant to remove the trees because of the impacts of this on privacy, amenity and property value.

Conclusions

49 The trees severely obstruct high-value views from both applicants' properties. Mr Fardouly once enjoyed uninterrupted views to the east across Kogarah Bay and Botany Bay and northeast to the city skyline. The Issas, who have lived here for a shorter period, also enjoyed some views. It is reasonable for both applicants to expect their views to be protected to some degree, especially Mr Fardouly's as he has shown that his family once enjoyed the view without any obstruction.

50 Pruning the trees to the extent required to restore the views would have a negative impact on their health and form. This would also leave an unattractive site when the tops of the trees are viewed from the applicants' dwellings. Pruning is not a suitable outcome. For Mr Fardouly's views to be restored, at least seven of the trees, and possibly more, would need to be removed. Removing only part of the hedge would leave an unattractive tree at the newly exposed end. Considering this, along with the impact of view loss on the Issas, removal of all 15 trees would be the most suitable outcome, and this is what the Court will order.

51 Unless circumstances suggest otherwise, the cost of tree removal usually lies with the trees' owner, in this case Mr Zeritis. In resolving Mr Fardouly's application, I see no reason to vary from this principle. The Issas have offered to pay 25% of the costs of carrying out any orders made by the Court. It seems unlikely that Mr Zeritis would decline such an offer. Therefore an order for such compensation, which is effectively a consent order, will be included.

52 If Mr Zeritis decides to plant new trees along his western boundary, their height should be restricted so as to protect the applicants' views. Therefore such an order will also be included.

Orders

53 As a result of the foregoing, the Orders of the Court are:

(1) The application is upheld.

(2) Within 30 days of the date of these orders the respondent, Mr Zeritis, is to obtain three quotes from suitably qualified arborists (minimum AQF level 3) with all necessary insurance for the removal of the 15 Bhutan Cypress trees. The quotes are to be for the removal of the 15 trees to one metre above ground level. If Mr Zeritis wishes to remove the stumps of the trees below this height that is to be quoted separately and is to be entirely at his expense.

(3) Within 35 days of the date of these orders Mr Zeritis is to agree with the Issas on the quote to be approved.

(4) Mr Zeritis is to engage and pay for the arborist selected in (3) to carry out the removal of the 15 trees to one metre above ground level within 60 days of the date of these orders.

(5) On reasonable notice (at least two working days) Mr Fardouly and the Issas are to provide all access required by the contractor for the works to be completed during reasonable hours of the day.

(6) Within 14 days of receipt of a copy of a paid invoice for the works in the approved quote, the Issas are to pay to Mr Zeritis 25% of the quoted amount.

(7) If the Issas do not receive a copy of the paid invoice within 90 days of the date of these orders, (6) lapses.

(8) If trees are again planted along the western boundary of the respondent's property, they are to be maintained at a height not exceeding 3.5 metres.

(9) The exhibits are retained.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 21 December 2012