Land and Environment Court New South Wales

• Medium Neutral Citation: Davine v Beckitt [2013] NSWLEC 1067
• Hearing dates: 1 March 2013
• Decision date: 09 April 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed in its entirety

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction of sunlight; application dismissed
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140; Tooth v McCombie [2011] NSWLEC 1004
• Category: Principal judgment
• Parties: Robyn Davine (Applicant); Patrick Beckitt (First respondent); Christopher Chojnicki (Second respondent)
• Representation: APPLICANT: Sarah Furlonger (Solicitor) Yates Beaggi Lawyers; RESPONDENTS: Patrick Beckitt and Christopher Chojnicki (Litigants in person)
• File Number(s): 21265 of 2012

Judgment

Introduction

1 Harbour views in Sydney can be highly sought after, particularly when those views include the Harbour Bridge. Houses are designed, and additions are made, with those views in mind. At the same time, the amenity of a neighbourhood is valued by residents, as is the amenity of individual properties. Privacy between closely built dwellings is also usually desirable.

2 Robyn Davine, an owner of a Birchgrove property, has applied under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the removal or pruning of neighbouring trees, on the basis that those trees are obstructing sunlight to, and views from, her property. The application is less than completely clear in some regards. On a plan of the applicant's dwelling only three windows are indicated as suffering an obstruction of views and sunlight. However, at the onsite hearing the applicant stated that this refers to three windows on each of the three levels (ground floor, first floor and second floor) so that there are nine relevant windows.

3 The respondents, Patrick Beckitt and Christopher Chojnicki, are of the view that the application did not include the upper level of the applicant's dwelling, as this is an addition to the dwelling and, at Question 11 of the Tree Dispute Claim Details (Exhibit B) the applicants had answered "No" to the question: "Is this window part of an addition?" At the hearing the applicant took us to all three levels, the view was assessed from all three levels and the respondents aired their views regarding any obstruction. I shall give the applicant the benefit of the doubt, take her application at its highest, and consider all three levels.

4 Although there may be nine windows and nine viewpoints in all, the application is also unclear regarding which windows suffer an obstruction of sunlight and which an obstruction of views. I therefore base the following decision on submissions made throughout the hearing.

Brief history

5 The timeline of relevant events follows:

• Since 1997 the respondents have owned and lived at their property.
• Since 2004 the applicant has been an owner of her property.
• In February 2005 the respondents constructed and planted their garden based on plans obtained from a landscape designer.
• In August 2005 the applicant gained Council approval for the second floor addition to the dwelling, although it was not constructed immediately.
• Several times over the following years, as the trees grew, the parties discussed the trees and view lines and the respondents had the trees pruned several times.
• In 2012 the applicant constructed the second floor addition, moving into it in December 2012.

The trees

6 The respondents have a path alongside their house in the narrow area between their dwelling and the common boundary. On either side of this path they have planted a row of three maples - six maples in all. These trees are 4-5 metres tall; their crowns overlap; they are between the two dwellings.

7 In the rear garden of their property, in a triangular bed that adjoins the common boundary, the respondents have planted four birch trees in a triangular formation: T1 is near the corner of the property, T2 and T3 are each several metres away from T1 along the side and rear boundaries respectively, and T4 is halfway along a line drawn between T2 and T3. The trees are approximately 10 metres tall and in good health.

8 The trees have been pruned several times, including relatively recently, to restore or maintain, according to the respondents, a view line from the applicant's first level to the city skyline. The trees are to the east and north-east of the applicant's dwelling.

Framework of the Act

9 Before the Court can make any orders, there are several jurisdictional tests that must be answered. Firstly, the trees must be planted so as to form a hedge (s 14A(1)(a)). Secondly, they must be more than 2.5 metres tall (s 14A(1)(b)). Thirdly, the trees must severely obstruct sunlight to a window of the applicant's dwelling (s 14E(2)(a)(i)) or a view from their dwelling (s 14E(2)(a)(ii)). And finally, the severity of the obstruction must outweigh any reason not to interfere with the trees (s 14E(2)(b)). If these key jurisdictional tests are satisfied, the Court can make such orders as it sees fit to remedy, restrain or prevent the view or sunlight obstruction after considering the matters set out in s 14F.

10 The trees are all more than 2.5 metres tall. The respondents say that the trees were not planted so as to form a hedge. They say that the applicants never had views of the Harbour Bridge and that views of the city skyline are still available from the first level.

11 The main issues to be resolved, then, can be summarised as follows:

• Are the trees planted so as to form a hedge?
• Is there a severe obstruction of sunlight to a window of the applicant's dwelling or of a view from her dwelling?
• Does the severity of the obstruction outweigh any reason, such as privacy, not to interfere with the trees?

12 Regarding the second question above, both sunlight and views must be assessed from each of the nine windows. Windows (and viewpoints) 1-3 are on the ground level; windows 4-6 are on the first level; and windows 7-9 are on the second level. Windows 2, 5 and 8 face the side boundary; the remaining windows face the rear boundary.

The applicant's submissions

13 Ms Davine submits that, from the bedroom on the ground level, city views are obstructed through the side window (W2) by the maples, and morning sunlight is obstructed to the rear windows (W1 and W3) by the birches.

14 She says that from the first level, city views are reasonable since the birches were recently pruned, but prior to that the views were obstructed by long branches of these trees. She says the birches obstruct morning sunlight to the rear windows (W4 and W6) during summer and that this obstruction is severe.

15 Ms Davine says that from the main bedroom on the second level the birches obstruct a view of the Harbour Bridge. She says this view would have been available at the time the second level addition gained Council approval in 2005 and that they anticipated the view, although never actually gaining it.

The respondents' submissions

16 Mr Beckitt and Mr Chojnicki say they planted the trees as part of a professionally planned garden design. Part of their brief was to maintain their own and neighbours' view lines. They assert that, and submit photos that show, there were never views of the Harbour Bridge from the applicant's ground and first floors. They say that Harbour Bridge views have never been available to the applicant from the second floor addition - by the time it was constructed their birches were tall enough to be in the view line. But they say that other trees beyond their property have obstructed the view as well. They note that growth of further distant trees has partially obscured their own views over time, and that the same would apply to the applicant.

17 The respondents say the birches have been pruned regularly to maintain the applicant's city views and submit photos to demonstrate this. They say the birches have helped to control soil moisture problems in their garden.

18 The respondents say they value the maples for the privacy and cooling they provide, but have trimmed them annually to control their size.

19 The respondents say that their property is to the south of the applicant's, so any shading by their trees must be minimal. They point out that the trees are deciduous and therefore allow sunlight and views in winter.

Do the trees form a hedge?

20 The respondents submitted their landscape designer's plans and design response (within Exhibit 1). Although the plantings of maples and birches are not described as hedges, under "Site analysis" are the statements: "Use small trees to screen on NW side of house...", referring to the area where the maples are planted, and "plant a grove of Tropical Birch as a screen and for interest." The maples are planted in straight lines, at regular and close spacings and their canopies interlock. Three of the four birches are planted in a straight line. The birches are at close and regular spacings and their canopies interlock. Although the plans do not include the word "hedge", the plantings were clearly done to provide screening and, in form and purpose, they are equivalent to hedges. I accept the applicant's submissions that the trees were planted so as to form a hedge.

Is there a severe obstruction of sunlight?

21 The applicant submitted shadow diagrams that show the shadows of trees and of only some buildings (apparently not buildings adjacent to the birches) at several times in the morning on the following dates: 21 September, 21 December and 21 March. The diagrams do not differentiate between shadow from overhead balconies and shadows from trees. There is nothing on the drawings to indicate who drew them or when they were drawn. The diagrams show shadows of the birches but not of the maples. Based on these diagrams, and the limitations described above, I have made the following assumptions and findings. I also note that the applicant made no submissions regarding loss of sunlight to the second level additions, nor is this level shown on the shadow diagrams. Therefore windows W7, W8 and W9 will not be considered regarding sunlight.

Maples

22 The maples do not cast shade onto any windows on the first floor, nor do they obstruct sunlight to W1 and W3 on the ground floor. They may obstruct sunlight into the side window (W2) on the ground floor, however this is not shown on any shadow diagrams. To my mind it would be unreasonable to expect side windows to receive no obstruction of sunlight, as such windows are commonly obstructed by neighbouring dwellings. The Court must consider, at s 14F(l), the trees' contribution to privacy, landscaping and garden design. I find that that the maples contribute significantly to privacy and garden design and, for this reason, even if they were found to cause a severe obstruction of sunlight to W2, using the discretion to consider other issues allowed by the Act, no orders would be made to mitigate such obstruction. As a result of the foregoing, no orders will be made for the maples in regard to sunlight.

Birches

23 Turning to the birches, I note that the side windows W2 and W5 are not shown in the shadow diagrams and no evidence was adduced to demonstrate any obstruction of sunlight to these windows by the birches. Therefore, only windows W1, W3, W4 and W6 will be considered and it is these windows that are shown in the shadow diagrams.

First floor (W4 and W6)

24 The following table shows the percentage of window area shaded at various times as shown on the shadow diagrams.

21 September
6 a.m.	<20%
7 a.m.	<20%
8 a.m.	<10%
21 December
6 a.m.	<20%
7 a.m.	<30%
8 a.m.	0%
9 a.m.	0%
21 March
7 a.m.	<20%
8 a.m.	<10%
9 a.m.	0%

After 9 am the trees do not shade these windows. At the most shaded time of 7 am on 21 December these windows are less than 30% in shade. Based on the above, I do not find there is a severe obstruction of sunlight to these two windows.

Ground floor (W1 and W3)

25 The following table shows the percentage of window area shaded at various times as shown on the shadow diagrams.

21 September
6 a.m.	>80%	Likely to include building shadow
7 a.m.	<50%	Likely to include building shadow
8 a.m.	<10%
21 December
6 a.m.	<50%
7 a.m.	>80%	~30% shadow from overhead balcony
8 a.m.	>80%	~70% shadow from overhead balcony
9 a.m.	100%	All from overhead balcony
21 March
7 a.m.	<50%
8 a.m.	<20%
9 a.m.	30%	All from overhead balcony

It appears that, after 9 am, or soon after, the birches do not shade these windows at all. At several times the amount of shading on these windows is greater than 80% of their area. However I note that at 6 am on 21 September much of the shadow is likely to be cast by the building to the north of the trees. At s 14F(m) the Court must consider other factors that contribute to the obstruction. Comparison of shadows from the overhead balcony shown at 9 am on 21 March indicates that much of the shadow at 7 am, 8 am and 9 am on 21 December is from the overhead balcony, so that the trees account at all these times for less than 50% of window area being in shade. I do not regard shading of less than 50% as a severe obstruction of sunlight to these two windows.

26 At s 14F(o) of the Act the Court is to consider the amount and number of hours of sunlight lost due to the obstruction. In the past the Court has considered the usual minimum development standards for sunlight (solar amenity) required by most councils for new developments. This is typically at least 3 hours of sunlight to living room windows for at least 50% of their area on 22 June between 9 am and 3 pm. It appears that the birches cause little or no obstruction of sunlight to these windows during those hours.

27 As I am not satisfied that the birches cause a severe obstruction of sunlight to the applicant's windows, the application regarding obstruction of sunlight is dismissed.

Is there a severe obstruction of a view?

28 Turning to the issue of views, it is clear, when looking out from the various viewpoints of the applicant's dwelling, that the birches cause some obstruction of views. The applicant says that these views are of the city skyline from the ground level and first floor, and would include the Harbour Bridge and the harbour from the second floor bedroom.

29 In Tenacity Consulting v Warringah Council [2004] NSWLEC 140, Roseth SC outlined a process for assessing view loss. In brief, the issues to be considered include: the value of the view; where the view is lost from (for example, a living area or a bedroom); and how much of the view remains. The Senior Commissioner included the Harbour Bridge among his examples of iconic views and both parties here accept that views of high value are at stake. As required by s 14F(q) of the Act I consider below the nature and extent of the view available to the applicant, and the nature and extent of the remaining view.

Ground floor

30 The applicant says that views of the city have been lost through the side window of the bedroom (V2) and from the front of the bedroom (V1 and V3).

31 At s14F(r) the Court must consider the part of the dwelling to which sunlight is obstructed. These views are from a bedroom and across a side boundary. In Tenacity at [27] Roseth SC stated the following.

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.

At [28] the Commissioner added that the "impact on views from living areas is more significant than from bedrooms or service areas."

32 Accordingly, even if I accept that there is a severe obstruction of a view to the downstairs bedroom windows, after considering the amenity and screening provided by the trees I would not, on this basis, make orders to interfere with the trees.

First floor

33 I accept the respondents' position, supported by photographs, that views from the first floor lounge room have included the city skyline but not the harbour or Harbour Bridge. I also accept the applicant's claim, also supported by photographs, that at times, including relatively recently, branches of the birches have obstructed city views. However, the trees have been pruned recently so that, on the day of the hearing, views of the city skyline were readily available from the lounge room and I do not find that there is a severe obstruction of a view from the first floor windows. During her final submissions, Ms Davine said that the view of "the city skyline is what matters; and that is okay today." She said that she would be happy with an outcome that meant the views available on the day of the hearing are maintained. While I accept that a severe view obstruction may have existed recently, Ms Davine's statements only support my own finding that there was no severe obstruction of the valued view on the day of the hearing. In Tooth v McCombie [2011] NSWLEC 1004 at [4] Fakes C addressed this same issue:

4 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.

34 I can appreciate the applicant's desire to maintain the view as it now stands, but cannot make orders for this if there is now no severe obstruction of that view.

Second floor

35 Although the applicant says that, at the time of Council's approval (2005) the second floor addition would have had access to views of the Harbour Bridge, I accept the respondents' submission that, as the addition was not built until 2012, after the trees had grown into the view line, the applicant has not lost a view that she actually enjoyed. Of course, the applicant may have imagined and looked forward to enjoying the view but she has never actually had that view, so it has not become obstructed by the neighbouring trees. At s 14F(b) the Court is required to consider: "whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to)." We are asked to consider the trees' presence in relation to the existence of the dwelling or addition rather than in relation to the existence of approved plans.

36 It was not unreasonable for the respondents to allow the trees to grow up into this potential view-line. It is possible, as does happen, that councils approve works that are never completed. I find that, as the applicant did not have the view of the Harbour Bridge, the view from the second level has only ever included the city skyline, and that view remains. It is worth noting, however, that the trees are deciduous (s 14F(p)) and that views of the Harbour Bridge may well be available to the applicant during the winter months.

Conclusions

37 The respondents' birches cause some minor shading of some of the applicant's windows in the early morning only. In my mind, this is not a severe obstruction of sunlight and does not enliven the Court's jurisdiction. The maples may cause some shading of the downstairs bedroom, but their contribution to privacy outweighs any expectation of uninterrupted early morning sunlight to a downstairs side window. Therefore this element of the application is dismissed.

38 The birches were pruned recently and, on the day of the hearing, did not severely obstruct views of the city skyline from the first and second floors. An obstruction of a view from the downstairs bedroom across a side boundary would not justify interference with the trees. The applicant has not had access to views of the Harbour Bridge, so such a view has not become obstructed by the respondents' trees. Based on these findings, the application regarding views is also dismissed.

Orders

39 As a result of the foregoing, the orders of the Court are:

(1) The application is dismissed in its entirety.

 

 

D Galwey

Acting Commissioner of the Court

Decision last updated: 22 April 2013