Land and Environment Court New South Wales

• Medium Neutral Citation: Golchin v Turner [2013] NSWLEC 1138
• Hearing dates: 24 July 2013
• Decision date: 30 July 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees to which Part 2A applies
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094; Haindl v Daisch [2011] NSWLEC 1145; Johnson v Angus [2012] NSWLEC 192; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mr A Golchin (First Applicant); Ms L Golchin (Second Applicant); Mr B Turner (Respondent)
• Representation: Applicant: Mr S Brockwell (Barrister); Respondent: Mr G Christmas (Solicitor)
• File Number(s): 20283 of 2013

Judgment

1 COMMISSIONER: The applicants in these proceedings contend that enjoyable views of the Sydney Harbour Bridge, the Opera House, Sydney Harbour, North Sydney skyline, district views of Vaucluse and the land/water interface near Clifton Gardens and Georges Heights are severely obstructed by trees growing on the respondent's property.

2 The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders requiring the reduction of the trees to a height of 4.0 metres with subsequent maintenance at 4.5m and a reduction in width of nominated trees to 1.5m. These works are to be carried out by the respondent and his cost, or alternatively by the applicants at the respondent's cost.

3 During the hearing, the application was amended to alter the pruning height to 4.5m with subsequent maintenance at 5.0m.

4 The applicants are also seeking orders for the payment of legal costs and expert's fees. In regards to this element of the application, Commissioners do not have the jurisdiction to award such costs. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or the Registrar.

5 The respondent disputes the severity of the impact of the trees on the applicants' views. However, should the Court determine that the impact is severe, the respondent's position is that the trees should be pruned by the respondent at the applicants' expense.

6 In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the trees the subject of the application.

Does Part 2A apply to the trees in question?

7 Section 14A(1) states:

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

8 The trees in question are located at the rear of the respondent's property in Vaucluse. Trees numbered T4, T5, T6 and T7 are growing along the south-eastern boundary of the respondent's property; this is the common boundary between the parties. Tree 8 is located on the south-western boundary and some distance from the other trees. The tree numbering is based on an arborist's report prepared for the applicants and there are no trees 1-3.

9 Trees 5, 6 and 7 are three Brush Box that were present when the respondent purchased his property in 1983. Tree 4 is a Magnolia grandiflora, identified in the arborist's report as the cultivar 'Little Gem'. According to the respondent's evidence, this tree was planted by the respondent in or about 1987. T4 is located in the southern corner of the property and close to T5.

10 In or about 2000, the respondent's partner planted two Leyland Cypress trees close to each other, one of which is T8. It was agreed that the other Cypress should be included as T8A.

11 Not identified in the application claim form but present on the respondent's property are a Fraxinus sp (Ash) and a Ficus benjamina (Weeping Fig) growing along the south-western boundary between the Magnolia and the Leyland Cypress.

12 Mr Brockwell for the applicants contends that notwithstanding the fact they were planted at different times, Trees 4, 5, 6 and 7 are planted so as to form a hedge. As there are two Leyland Cypress trees, they too form a hedge.

13 Mr Brockwell cites the decision by Preston CJ in Johnson v Angus [2012] NSWLEC 192. He argues that while Johnson is authoritative on the requirement for a tree to be planted, that is it requires human agency to place it in the ground, it is not authoritative on the timing of the planting. He contends that the respondent planted the Magnolia, a species of similar form and leaf character to the Brush Box, and the most troublesome for his clients, in order to extend the hedge created by Trees 5, 6 and 7. Mr Brockwell maintains that the discussion in Johnson does not preclude trees in a hedge being of different species.

14 Mr Christmas for the respondent accepts that trees 5, 6 and 7 are planted in a linear arrangement and relatively close together and could be considered as a hedge for the purpose of the Act. However, he considers that the Magnolia is not part of that planting and therefore Part 2A does not apply. He cites the Court's findings in Coleman & anor v Leddy & anor [2013] NSWLEC 1094 at [12]-[14] in regards to the difference in the species and that a contiguous canopy does not, in itself, satisfy s 14A(1)(a).

15 While initially disputing the inclusion of T8 given its distance from the other trees, Mr Christmas is content to include the two Leyland Cypress.

Findings - s 14A(1)(a)

16 In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of s 14A(1)(a). At [28] His Honour states:

28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.

17 In the matter before me, as the Brush Box were planted some time before the respondent purchased his property, there is no opportunity to determine whether the trees were 'planted so as to form a hedge'. However, as there are no arguments as to why the Brush Box shouldn't be considered as being 'planted so as to form a hedge', I am satisfied that these three trees, T5, T6 and T7, are trees to which Part 2A applies.

18 I am also satisfied that the two Leyland Cypress, T8 and T8A, having been planted in 2000 during the same planting event, also satisfy the provision for there to be '2 or more trees...planted so as to form a hedge'. Apart from their proximity to one another, the species is commonly used as a hedging plant. Therefore the Leyland Cypress trees are a separate hedge and trees to which Part 2A applies.

19 The tree is dispute is the Magnolia, T4. In the matter of Coleman cited by Mr Christmas, there were two distinct plantings, one in 2001 and one in 2006, of groups of two or more trees. In that matter, at [11] I noted that it was open for me to find that there were two possible 'hedges' - the 2001 'hedge' and the 2006 'hedge'.

20 However, in regards to the Magnolia, while I note Mr Brockwell's argument that, in his view, Johnson does not specifically require the plantings to occur at the same time, I consider the tree to have been planted as a single entity in a temporally separate event. If there were two Magnolias, (or the Magnolia and another species with similar characteristics) planted at that time, close enough to be perceived as forming a hedge, and that arrangement continued, then it would be open for me to consider the Magnolia as being a separate 'hedge'. However, this is not the case.

21 While the Magnolia adjoins the Brush Box and its canopy interlocks with T5, I maintain the finding in Coleman at [14] that this insufficient, in itself, to satisfy s 14A(1)(a).

22 I also note Preston CJ's findings in Johnson at [43], that in essence, a single tree cannot acquire the status of being planted so as to form a hedge if, at a later date, other trees are planted near it. In my view, the converse also applies that a single tree, planted at a later date, cannot acquire the status of a hedge by virtue of being planted near an existing hedge.

23 Therefore, I am not satisfied that the Magnolia, T4 is a tree to which Part 2A applies and therefore the Court has no jurisdiction to make any orders for any intervention with this tree in the context of the application before the Court.

24 As the trees in the Brush Box hedge and the Leyland Cypress hedge are in excess of 2.5m, s 14A(1)(b) is satisfied.

Is there a severe obstruction of a view as a consequence of the trees to which the Act applies?

25 Section 14B states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

26 Having determined the trees to which Part 2A applies, the next jurisdictional test to be considered is s 14E(2) which 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.

The nominated viewing points

27 The applicants have nominated four viewing points, V1 and V2 on the ground floor balcony and V3 and V4 on the first floor balcony. These balconies extend the full extent of the rear sections of the ground and first floors of the applicants' dwelling. The applicants' dwelling is upslope of the respondent's property and the rear of the dwelling faces northwest.

28 The principal living areas are on the ground floor. The section of balcony V1 adjoins a family room at the south-western end and V2 adjoins a more formal sitting room at the south-eastern end (during the hearing the applicants included this room as part of V2). The rear section of the ground floor is generally open-plan.

29 In their application claim form, the applicants state that T4 and T8 have completely blocked the views from V1 of the harbour and the 'iconic' North Sydney skyline. From V2, they say they can no longer see the Harbour Bridge and the view of the Opera House is severely impacted by T4 and T8. They state that when they purchased their property in 2001, and up until about 2010, the views were unobstructed by those trees.

30 During the hearing, Mr Brockwell indicated the obstruction of views to the north of Georges Heights and the land/water interface by T7 and the obstruction to the north-west of the ridgeline/ horizon near Chatswood as a consequence of T5.

31 The applicants contend that T5, T6 and T7 have grown to such an extent that water views, particularly to the west and northwest, from V3 and V4 are severely obstructed.

32 Mr Christmas contends that the applicants have virtually unobstructed views to the west of the iconic Sydney structures of the Opera House, Harbour Bridge and the CBD. In his opinion, the eye is drawn to this view. In regards to V2, the view is only obscured if one stands in the far corner of the balcony or the sitting room.

33 In regards to the views from the first floor, Mr Christmas maintains that T5, T6 and T7 cause only a modest interruption of an otherwise almost 180 degree panorama. He argues that a palm on the applicants' property and a Paperbark on other property obstruct more of the view from upstairs than the respondent's trees.

34 In citing the planning principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140, Mr Christmas maintains that when the views from the whole of the property are considered, in particular those from the living areas of the iconic elements of the view, the impact of the trees is negligible.

35 Mr Christmas also cites Haindl v Daisch [2011] NSWLEC 1145 at [26] and the Court's interpretation of 'a view' and relating to the totality of the view and not a slicing up of that view.

36 Mr Brockwell contends that one has to look hard to the left [the west] to see the iconic views and that the case principally focuses on the direct close views from the rear of the applicants' property to Clifton Gardens and Bradley's Head as well as the severe obstruction of district views of Vaucluse and the associated land/water interface.

Observations and findings - s 14E(2)(a)(ii)

37 There are many reasons why applications made pursuant to s 14B Part 2A of the Trees Act must commence on site. Firstly, the Court must be satisfied that Part 2A applies to the trees the subject of the application. Secondly, s 14E(2)(a) requires that the trees to which the Part applies are (that is, at the time of the hearing) severely obstructing sunlight to windows of a dwelling or are severely obstructing views from a dwelling.

38 The site inspection enables the Court to make their own assessment of the views and to make sense of the parties' evidence and submissions.

39 Applications often include photographs that may not accurately represent what the eye sees. Photographic evidence of the views available when an applicant purchased or occupied their property can be very useful in determining what may have changed over time and what may have led to the making of the application. In this regard, it is essential that the position from which the photographs were taken be determined during the hearing.

40 As discussed in McDougall v Philip [2011] NSWLEC 1280 at [20] - [25], it is not the purpose of the Act, as amended in 2010 to include Part 2A, to enable an applicant to obtain a view that was not available to them at the time of purchase or occupation.

41 In regards to what constitutes 'a view' for the purpose of Part 2A, I have consistently applied the interpretation discussed at length in Haindl v Daisch and essentially summarised in paragraph [26]:

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.

42 In view matters, the Court often has regard to the planning principle in Tenacity. The relevant steps in this principle consider: the assessment of the views affected - iconic views, water views, land/water interface, district views; the part of the property from where the views are obtained - across rear or side boundaries, standing or sitting positions; and the extent of the impact - for the whole of the property, living areas v bedrooms, qualitative impact of negligible, minor, moderate, severe or devastating.

43 In the matter now before me I note the following observations I made from each of the viewing points and the relevant findings.

44 Dealing first with V3 and V4, the balcony on the first floor, the applicants' position is that Trees 5, 6 and 7 have increased in size to the point where they severely obstruct the land/water interface to the northwest as well as district views of Vaucluse. V3 adjoins a secondary living area and V4 a bedroom.

45 In their claim form, the applicants include a photograph taken in 2001 from approximately V3 (Annexure C, Exhibit B). This is around the time of purchase. The photograph shows the respondent's trees as they were then. While the view is not seen in that photograph, what is likely to have been seen (and now said to be obscured) can reasonably be determined.

46 During the hearing, a height stick was set up beside T5 and set to its maximum height of 6m. When viewed from V3 from approximately the same position as the 2001 photograph, T5, 6 and 7 were between 6 and 7 m at that time. In 2001, when viewed down from V3, the average canopy was level with the guttering on the respondent's roof. While the Magnolia was smaller, the Ash tree behind it appears relatively large. Trees 5, 6 and 7 have grown 1-2 metres since that photograph was taken.

47 It is reasonable to assume from the 2001 photograph that none of the respondent's trees obstructed any part of the view from V3 and V4 although the view is likely to have been punctuated by a palm on the applicant's property and other trees elsewhere.

48 At the hearing I observed an almost uninterrupted panoramic view from the Sydney CBD in the southwest to Georges Heights in the northeast. This includes the iconic elements of the Opera House, Harbour Bridge and a significant view of the harbour. It includes North Sydney and the ridgeline towards Mosman. There is, in my opinion, a minor obstruction of the land/water interface near Clifton Gardens as a consequence of T5. Similarly T5 and T6 and the Leyland Cypress beyond, cause a minor obstruction of district views of Vaucluse. Overall, I find the obstruction caused by the respondent's trees to be negligible and in no way severe.

49 Turning to V1 and V2, I agree with Mr Christmas, that when standing on the portion of the balcony adjoining the family room (V1), the eye is drawn to the uninterrupted views of the Sydney CBD, Opera House, Harbour Bridge, North Sydney, the Harbour below the Bridge, Neilson Park and the district views between Vaucluse to the city. While I agree that a portion of the view of the northern shoreline and ridgeline may be obstructed by the Magnolia, this is a minor interference with pleasant but in no way iconic views. The iconic views from V1 are unobstructed by any trees to which Part 2A applies.

50 The views to the northwest, that is, directly opposite V1, are principally of the respondent's trees, with the two-storey dwelling behind, and across the applicants' relatively large back garden and pool. While the applicants contend that they no longer see the ridgeline beyond the dwelling, given the height of the trees in 2001, I am not convinced that those views were available when they purchased the property, and in any case, given the iconic views to the west, would seem less important.

51 In regards to the views to the north, Mr Brockwell says would be of Georges Heights if not for the interference caused by T7, in my opinion, this is taking a slice by slice approach to the overall view from this balcony. It is unclear how much of that view would have been available in 2001 as the view in that direction from V1 is constrained by the dwellings at 5 and 7 Kings Road and by the most northern of a row of conifers growing along the applicants' north-eastern boundary. It is entirely possible that the growth of the conifers on the applicants' property has caused some obstruction of that view.

52 V2 is the eastern extension of the same balcony nominated as V1 but is much wider and accommodates an outdoor dining area. From V2, including from within the formal living room, the Opera House is clearly visible with some obstruction of the northern pylon of the Harbour Bridge caused by the edge of the Magnolia. Tree 5 and possibly the Leylands beyond do obscure the view to the west-northwest of North Sydney. I also note that part of the view from within the dwelling is obstructed by building elements.

53 In applying these considerations to V1 and V2, these are viewing positions on a balcony that extends the full extent of the applicant's dwelling. The balcony adjoins the family, dining and living rooms - the principal living areas on the ground floor, all of which have extensive areas of windows/ glass doors. Iconic views are largely unaffected from sitting and standing positions whereas some elements of the broader view, in particular district/ ridgeline views, may be compromised. The majority of the impact arises from a tree to which Part 2A does not apply. As stated above, I am not satisfied on the evidence that the applicants had the extent of the views they say they enjoyed in 2001.

54 Overall, I find the obstruction of any element of the overall view from V1 and V2, as a consequence of the trees to which Part 2A applies, to be minor and not severe. Even if I were convinced of a severe obstruction of the portion of the view through T5 and the Magnolia and the Leylands beyond, any interference with T5, T8 and T8A would be of little utility as no orders could be made for any interference with the Magnolia. In addition, given the height of the trees in 2001, it would be unreasonable to have made the orders sought by the applicants.

Orders

55 As I have determined that s 14E(2)(a)(ii) is not satisfied for any of the viewing locations, the Court has no jurisdiction to make any orders for the intervention with any tree on the respondent's land to which Part 2A applies. Therefore as a consequence, the Orders of the Court are:

(1) The application is dismissed.

________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 30 July 2013