Land and Environment Court New South Wales

• Medium Neutral Citation: Cocoran & anor v Goymour [2014] NSWLEC 1018
• Hearing dates: 29 January 2014
• Decision date: 06 February 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of views
• Legislation Cited: Interpretation Act 1987; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Hinde v Anderson & anor [2009] NSWLEC 1148; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140; Tooth v McCombie [2011] NSWLEC 1004
• Category: Principal judgment
• Parties: I & K Cocoran (Applicants); P Goymour (Respondent)
• Representation: Applicants: Mr I Cocoran (Litigant in person); Respondent: Mr P Goymour (Litigant in person)
• File Number(s): 20742 of 2013

Judgment

1 COMMISSIONER: The applicants purchased their property in Church Point in July/August 2010 around the same time the respondent purchased his property.

2 The applicants contend that when they purchased their property they enjoyed expansive views from all levels of their dwelling of Pittwater, Scotland Island and the tidal sand flats at the base of the slope on which their house is built. Since then, the applicants submit that a mass planting of palms growing on the respondent's property has severely obstructed those views from several parts of their dwelling.

3 An application has been made under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The applicants are seeking the reduction of the palms to a height of 2.5m with their subsequent maintenance at that height. The work is to be at the respondent's cost.

4 The respondent values the palms for the amenity they provide as well as their value in retaining soil on the steeply sloping site. He is concerned that pruning the trees to 2.5m could result in the death of many palms with the consequence of soil erosion.

5 In applications made under Part 2A of the Act, there are a number of jurisdictional tests that must be sequentially satisfied before the Court may consider what, if any, orders should be made.

6 Section 14A(1) states that Part 2A applies only to groups of 2 or more trees that are planted so as to form a hedge and which rise to a height of at least 2.5m.

7 The Court has dealt with a number of Part 2A applications concerning mass plantings of palms, in particular clumps of Golden Cane Palms such as those the subject of this application. Unless the spacings, arrangement and timing of planting suggest otherwise, the Court has generally accepted that such plantings satisfy the requirements of s 14A(1)(a).

8 I am satisfied to the extent required that the mixed planting of Golden Cane and Bangalow Palms growing along the south-western portion of the respondent's driveway and the common boundary with the applicants' property is a hedge for the purpose of the Act.

9 The next relevant test is satisfaction of 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.

10 Whether the trees about which the application is made are severely obstructing a view from the applicants' dwelling must be confirmed before any further consideration is made.

The viewing points and views

11 The applicants have nominated a number of viewing locations.

12 Viewing point 1 (V1) is the outdoor entertaining area on the ground floor in the under croft area below the level above. The views in contention are generally to the northeast across the lawn and pool towards Pittwater and Newport beyond. The application diagram indicates a 'field of view' constrained to the northwest by an established Bangalow Palm and to the northeast by mature poplars and other tall trees on other properties.

13 At the time the application was made, the applicants state in their claim form that all of their water views as well as views of Scotland Island and the tidal beach area were obliterated by the respondent's trees. They state there were no views from a sitting position and virtually no views from a standing position. They contend that at the time they purchased the property, the tops of the palms were below or level with the wet edge of their pool.

14 A real estate photograph taken from the pool deck in 2010 shows a view of Pittwater and the distant shore with emergent palms on the respondent's property growing above the Golden Cane Palms. The angle of the shot indicates that relatively extensive views may have been possible from V1. A photograph taken by the applicants in August 2013 shows most of the central portion of the water view from V1 obscured by the respondent's palms however Scotland Island can be seen.

15 The application was filed with the Court in September 2013 when the respondent was overseas. On his return he undertook the removal of several single trunked palms and the removal of a number of the tallest canes from the Golden Cane clumps.

16 At the hearing and from a sitting position, I observed extensive views of Pittwater and the distant land/water interface of Newport. The respondent's palms obscured the closest foreshore area/ tidal sand flats.

17 Viewing point 2 (V2) is located on the first floor of the applicant's four-storey dwelling. It is a bedroom on the western side of the dwelling currently occupied by one of their children who is in their final year of high school and in which they apparently spend a lot of time.

18 A photograph taken in August 2013 from a standing position shows a triangular section of Pittwater and Newport beyond. Palms and other vegetation obscure Scotland Island. The applicants stated that 70% of the water view was obscured and all of the shoreline. They maintain that from a sitting position at the desk, the views were even more constrained.

19 At the hearing, from standing and sitting positions I observed quite extensive views of Pittwater and Newport as well as the eastern portion of Scotland Island. The respondent's palms framed the lower portion of the view and obscured the tidal sand flats.

20 V3 and V4 are full-length windows/glass doors of the first floor family room. The applicants maintain that at the time the application was made the available water views from V3 and V4 were obstructed by about 60% and 70% respectively from a standing position and 80% and 70% when seated. Views of the tidal sand flats and the bus stop on Pittwater Road were completely obscured.

21 A photograph taken from V3 in August 2013 shows a broad expanse of Pittwater, the ridges beyond and Scotland Island.

22 At the time of the hearing from a standing position I observed the tidal sand flats, expansive views of Pittwater and the foreshore and hills of Scotland Island. From a sitting position at the rear of the family room looking through V4 I could see everything but the tidal flats.

23 While not part of the application, the applicants' principal living area (including the kitchen) is on level 3. There are uninterrupted views of Pittwater, the tidal foreshore and Scotland Island. The atrium on the entry level (level 4) enjoys similar uninterrupted views.

Findings - s 14E(2)(a)(ii)

24 The applicants have cited the Planning Principle published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 in regards to "whole views being valued more highly than partial views, eg. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured" [at [26]]. Their argument, as I understand it, is that quantitatively and qualitatively, their views are severely diminished.

25 While s 14B of the Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of a view from a dwelling, the use of the word are in s 14E(2)(a)(ii) requires the trees the subject of the application (and to which s 14A applies) to be severely obstructing the view at the time of the hearing. This is discussed in Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] and in considerable length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52].

26 I accept that the applicants' water views from V1 were severely obstructed by the respondent's palms when the application was made however I consider that the obstruction at the time of the hearing is best described as minor. This category of impact is based on qualitative scale in Tenacity at [28] given as negligible, minor, moderate, severe, or devastating.

27 In regards to V2, V3 and V4 and the photographs taken in August 2013, I would describe the impact as moderate but not severe. Based on my observations at the time of the hearing the obstruction is negligible from a standing position and very minor from a seated position.

28 In Tenacity at [27] the then Senior Commissioner notes that: "Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic".

29 In regards to the impacts of the respondent's palms on the qualitative nature of the view, and the assessment process in Tenacity, the applicants are particularly aggrieved about the loss of the view of the tidal sand flats and the foreshore near Pittwater Road. When considering the view available from the whole of the property, Tenacity at [28] considers that the assessment of impacts on view sharing should be done for the whole of the property, not just for the view that is affected. The views from the principal living area on level 3 include the view of the tidal flats.

30 Therefore I find s 14E(2)(a)(ii) is not satisfied for any of the viewing points and further consideration of s 14E(2)(b) and the discretionary matters in s 14F is not required. However, for the benefit of the parties, I make the following comments.

31 Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act.

The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies.

The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act.

The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review.

32 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006 " undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views.

a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.

b) That this jurisdiction be strictly limited, with applications restricted to hedges which:

are both high and give the effect of a solid barrier, and

are causing severe impact for a dwelling, and

have caused the impact to the applicant (not to the previous occupant), and

are located between neighbours on adjoining land.

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title.

f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.

33 The Parliament adopted all of the recommendations and the Act was amended in 2010 to include Part 2A.

34 Although the Act enables an owner of land to apply to the Court, the threshold of 'severe' sets a relatively high bar. While the applicants contend that the views they had when they purchased their land are now not as extensive as they once were, as noted in (d) above, the Act was not amended to enshrine a right to a view. Landscapes are dynamic and plants grow.

35 The respondent has taken action to limit the obstruction however, if the circumstances change, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, the applicants can make a further application.

Conclusions and orders

36 Having considered the relevant material in evidence and the views observed at the time of the on-site hearing, the Orders of the Court are:

(1) The application is dismissed.

______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 07 February 2014