Land and Environment Court New South Wales

• Medium Neutral Citation: Alameddine v Jones [2013] NSWLEC 1021
• Hearing dates: 17 January 2013
• Decision date: 06 February 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application is upheld in part.

(2) During June every year, beginning 2013, the respondents are to prune, or engage a suitable gardener or arborist to prune, the 21 Lilly Pilly trees forming a hedge along their boundary as follows:

· Reduce the height of trees along the upper section of fence to a height no greater than 0.7 metres above the top of the aluminium screen.

· Reduce the height of trees along the lower section of fence to a height no greater than 1.0 metre above the top of the aluminium screen.

· Reduce the height of trees between the two sections described above so that their tops form a straight line between the tops of those two sections.

(3) The applicant is to allow access to his property for the works in (2) to be carried out during normal working hours on reasonable notice (two working days).

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; pruning ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mr Obeid Alameddine (Applicant); Mr Peter Jones (First respondent); Ms Yuki Jones (Second respondent)
• Representation: Mr David Morgan Jones (Solicitor for the applicant); Mr James Antonenas (Solicitor for the respondents)
• File Number(s): 21011 of 2012

Judgment

1 COMMISSIONER: Mr Obeid Alameddine has lived at his East Hills property with his family since December 2009. His neighbours, Peter and Yuki Jones ("the Jones"), have lived at their property since 2005. The relationship between the neighbours has been discordant since early 2010. Affidavits of both parties reveal a history of hostile communications, often across the common boundary between the rear gardens of the two properties. In February 2011 Mr Jones planted a row of Lilly Pilly trees along this boundary to create a screen for privacy. Mr Alameddine now claims those trees obstruct his views to the Georges River and the canal nearer their properties. He has applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for the trees to be pruned so as to restore the views he once enjoyed. The Jones wish to retain the privacy afforded by the trees.

2 Under Part 2A of the Act, when an applicant claims that trees are obstructing a view, the Court must be satisfied: firstly, that the trees form a hedge according to s 14A; secondly, that they severely obstruct a view from the applicant's dwelling according to s 14E(2)(a)(ii); and, finally, that the severity and nature of the obstruction is such that it outweighs any reasons not to interfere with the trees. The Court is obliged to consider a range of matters outlined in s 14F before making any orders.

The onsite view

3 The hearing took place onsite, allowing observations of the trees and of the views and any obstruction of those views. The applicant expressed other concerns regarding the hedge, notably that it causes mould to grow on his shed roof and that it harbours spiders, which come onto his property. These matters are not relevant to determining an application concerning loss of views made under Part 2A of the Act.

Do the trees form a hedge?

4 There are 21 Lilly Pilly trees planted in a straight row in a raised garden bed on the Jones' property, adjacent to the common boundary. The row of trees begins at a point near the rear of the dwelling and extends for some distance along the boundary toward the rear of the properties. The trees are planted at regular and close intervals and their crowns interlock so that they form a continuous canopy and screen along the boundary. The boundary fence, or at least the aluminium screen atop that fence, is 1.8 metres tall when measured from within Mr Alameddine's property. The trees extend above the screen. The height of the screen follows the terracing of the Alameddine property so that, along the length of the hedge, there are two distinct levels of the screen joined by an angled or sloping section. The section of screen nearest the dwellings is the highest and the trees behind this section (T1 to T10) appear taller than the remaining trees.

5 I measured the trees with a height pole, using the soil level within the raised garden bed in which they are planted as "ground level". This may be some 300 mm above natural grade. All 21 trees are greater than 2.5 metres tall, some only slightly, with some reaching almost 3 metres. There is no question that the trees are planted so as to form a hedge. According to s 14A(1), part 2A of the Act applies to these trees.

Do the trees severely obstruct a view?

6 Mr Alameddine values the view of the canal that passes to the rear of these properties and the view further afield to the Georges River. He says the trees obstruct these views from the rooms at the back of the house on the lower level and from the outdoor terraces. Viewpoints V1, V2, V3 and V4 are through the sliding glass doors of the family room; V5 and V6 are through sliding glass doors of the dining and kitchen area; V7 is through a kitchen side window; and V8 is from the rear balcony. He says the views from the terrace below the rear balcony are also obstructed. He says his children's safety is compromised as he can no longer see them playing in the water from his seat in the lounge.

7 I observed the following. From V1, V2, V3 and V4 trees T1-T10 partially obstruct a view of the Georges River. They do not entirely obstruct this view. The trees cause little obstruction through the side kitchen window (V7). From the other viewpoints (V5, V6 and V8) trees T1-T10 almost entirely obstruct the available view of the Georges River and partially obstruct the view of the canal.

8 The trees obstruct views from the terraces below the balcony but I note that these are not part of the dwelling and so are not included in s 14E(2)(a)(ii).

9 The process of assessing view loss in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 provides useful guidance here. In that matter, Roseth SC adopted a four-step assessment process, as below.

(26) The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

(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.

(29) The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

10 I note that the view of the Georges River is a valuable view, though not iconic. Trees nearer the dwellings (T1 to T10) cause an obstruction of the view of the Georges River from the dining and kitchen areas and the balcony outside there. The river is only a part of the wider view, which is not entirely obstructed. Other parts of the view, such as the canal, are only partially obstructed, and parts such as the more distant landscape and sky are not obstructed at all. The view obstruction occurs over the side boundary.

11 I find that, although parts of the entire view can still be seen, a significant part of that view is now obstructed, from high-use living areas of the applicant's dwelling, by trees T1 to T10. It would be reasonable to regard this as a severe view obstruction from those points. Trees T11 to T21 do not cause any severe obstruction of the view from the dwelling, as they block only a small part of the view of the canal and do not obstruct river views. Mr Alameddine pointed out that they block views from his terraces, but these are not part of the dwelling.

12 The Jones emphasised that they require the privacy provided by the trees. It appears that their privacy could be maintained even if the trees were pruned enough to restore, partially, the views lost. The parties have each proposed suitable heights to which the trees should be pruned. The most suitable height will be determined below. However I conclude that some pruning is possible and would indeed be desirable, to remove and restrain the view obstruction caused by the trees. Therefore the test at s 14E(2)(b) is also satisfied and I can make orders as I see fit after considering the matters in s 14F.

Matters to be considered

13 The relevant clauses in s 14F are:

(a) The trees are wholly located on the respondents' property, close to the boundary.

(b) The applicants' dwelling and viewpoints existed before the trees were planted.

(c) The trees have grown to their current height of greater than 2.5 m during the period the applicants have owned the land.

(e) There was no evidence to suggest that the trees were planted as a condition of development consent for the respondents' property.

(g) The trees contribute, albeit it in a small way, to the local ecosystem and to biodiversity.

(h) The trees contribute to the scenic value of the land on which they are growing.

(i) The trees have little value to public amenity.

(k) The trees are of a species that is suited to pruning.

(l) The trees contribute to the privacy and general amenity of the respondents' property, particularly privacy from the applicant's dwelling. If pruning is not excessive this privacy could be maintained.

(m) There is some minor obstruction of the view by some palms that are further distant, but this was not significant.

(n) The applicant has asked the respondents to prune the trees to restore their views. The respondents have expressed willingness to prune the trees but not to the extent requested by the applicant.

(p) The trees are all evergreen species.

(q) The available views include water views that are of some value. While views of sky, landscape and parts of the water remain, river views are lost from key positions in living areas of the applicant's dwelling.

(r) The parts of the dwelling from which the views are obstructed are dining and living rooms, both areas of frequent use by all occupants.

Extent of pruning required

14 Having determined that pruning could restore the applicant's views while maintaining the trees' benefits to the respondents, the final matter to be determined is the extent of such pruning. It has been noted above that trees T1 to T10 cause a severe view obstruction from the dwelling, while trees T11 to T21 do not. However, as the 21 trees form a single hedge, orders may be made to remedy the existing obstruction and to prevent future obstruction of views by trees within the hedge.

15 The applicant states that he wants the trees pruned to a height of 2.4 metres above his ground level, or 0.6 metres above the top of the aluminium screen on top of the dividing fence between the two properties. The respondents say this would result in a loss of privacy. They say that pruning T1 to T10 to 0.7 metres above the screen would restore the view but maintain privacy. Due to the change in ground level, they say that T11 to T21 would need to be pruned to approximately one metre above the screen.

16 The maintenance of privacy appears to be a key issue. For this reason, I accept that the respondents' proposition is more suitable. Their proposed pruning height should restore sufficient views from the applicant's property and prevent any further view loss. I accept that this may not restore views to the applicant's full satisfaction; for instance, views from seated positions are unlikely to be restored. However, the value of views must be balanced with the importance of privacy.

17 Sometimes the Court gives orders for a hedge to be pruned to a specified height and not allowed to regrow above a maximum height. However, to avoid the need for constant measuring of this hedge by either party, orders here will be for annual pruning down to a specified height. This will be at the start of winter, when growth is likely to have slowed. Some view may be lost over the ensuing 12 months, but will be restored to the same extent every year.

Orders

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

(1) The application is upheld in part.

(2) During June every year, beginning 2013, the respondents are to prune, or engage a suitable gardener or arborist to prune, the 21 Lilly Pilly trees forming a hedge along their boundary as follows:

• Reduce the height of trees along the upper section of fence to a height no greater than 0.7 metres above the top of the aluminium screen.
• Reduce the height of trees along the lower section of fence to a height no greater than 1.0 metre above the top of the aluminium screen.
• Reduce the height of trees between the two sections described above so that their tops form a straight line between the tops of those two sections.

(3) The applicant is to allow access to his property for the works in (2) to be carried out during normal working hours on reasonable notice (two working days).

D Galwey

Acting Commissioner of the Court

Decision last updated: 06 February 2013