Land and Environment Court New South Wales

• Medium Neutral Citation: Cockinos & anor v Coorey & anor and Cockinos & anor v O'Sullivan [2011] NSWLEC 1091
• Hearing dates: 18 April 2011
• Decision date: 19 April 2011
• Jurisdiction: Class 2
• Before: Brown C and Fakes C

Decision

Appeals upheld

• Catchwords: TREES [NEIGHBOURS] - hedge; whether trees create severe obstruction of view loss from a window in a dwelling
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Appeal No 20996 of 2010; APPLICANTS; Jack and Francis Cockinos; RESPONDENTS; Joseph Coorey and Therese Chalhoub Coorey; Appeal No 21057 of 2010; APPLICANTS; Jack and Francis Cockinos; RESPONDENT; Geraldine O'Sullivan
• Representation: APPLICANT; Mr F Frazi, Solicitor; RESPONDENTS; Mr M Coorey, Solicitor; APPLICANT; Frazi Lawyers; RESPONDENTS; Rigelsford Jensen & Co
• File Number(s): 20996 of 2010; 21057 of 2010

Judgment

1 COMMISSIONERS: These are two separate but related applications under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Wisdom Street, South Coogee regarding: trees on two adjoining properties in Alexandria Parade that is claimed obstruct easterly views towards the Pacific Ocean from the dwelling on the applicants' property. The trees are located on two different properties along the eastern boundary and at a lower level than the applicants' property due to the natural topography of the area.

2 The applicants' dwelling was inspected on the site view and the locations of the view loss were observed and an understanding of the relationship between these locations and the adjoining properties was made. The respondents' rear yards were also inspected, as were the trees in question, and observations were also made on the relationship between this area and the adjoining property, including the windows identified in the applications. The claim for loss of sunlight was not pressed at the hearing.

The applicationS

The Coorey property

3 The application states that the trees prevent views to the Pacific Ocean and the applicants are seeking orders that require the pruning of 3 x hibiscus (T1-T3) that are located directly adjoining the east facing balcony off the living room. The applicants maintain that there is a severe obstruction of the views from the dining room (V1) and the balcony and the adjoining living room (V2-V4) caused by the hibiscus.

4 The applicants seek orders that the respondents engage a horticulturalist or arborist to prune the trees to a height of 2.5 m to allow regrowth to 3 m. On the site inspection the applicants proposed that the trees be level with the 1 m balustrade on the balcony, or 4.1 m from the base of the trees. The applicants also sought further orders that required the work to be completed within 30 days of the date of the orders and that the respondents are to maintain the trees at the proposed height, at their cost.

The O'Sullivan property

5 The application states that the trees also prevent views to the Pacific Ocean. The applicants are seeking orders that require the pruning of the 14 bamboo plants ( Bambusa oldhamii ) that are located directly adjoining the main bedroom window (V1 and V2), the adjoining bathroom window (V3), the swimming pool (V4), the northerly area adjoining the swimming pool (V5) and the patio area adjoining the doors to the main bedroom (V6). Leave was granted during the hearing to also include the northerly windows of the bedroom and full height glass doors that lead to the patio area.

6 The applicants maintain that there is a severe obstruction of views from these locations by the bamboo . The applicants seek orders that the respondent engage a horticulturalist or arborist to prune the bamboo to a height of 2.5 m to allow regrowth to 3 m. On the site inspection the applicant proposed that the trees be level with the 1.2 m balustrade on the balcony, or 4.3 m from the base of the trees. The applicants also sought further orders that required the work to be completed within 30 days of the date of the orders and that the respondent is to maintain the trees at the proposed height, at their cost.

THe respondent's position

7 The respondents maintain that the trees are required to provide a reasonable level of privacy, particularly since recent alterations to the applicants' property have provided greater opportunities for overlooking and loss of privacy.

The Coorey property

8 The respondents propose alternative orders that require the hibiscus be pruned to height of 4.6 m from the base of the trees to allow regrowth up to 4.9 m, then pruned to 4.6 m at the applicants' cost. This equates to a height of 1.5 m to 1.8 m above the height of the applicants' adjoining ba

The O'Sullivan property

9 The respondent proposes alternative orders that require the bamboo be pruned to a height of 5.1 m from the base of the trees to allow regrowth up to 5.6 m, then pruned to 5.1 m at equal cost to the parties. This equates to a height of 2 m from the base of the applicants' deck and to allow regrowth to a height of 2.5 m.

The framework for consideration

10 Section 14A(1) provides:

14A Application of Part

(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).

11 Section 14B provides:

14B Application to Court by affected land owner

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 .

12 Section 14D(1) provides:

14D Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

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

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

if the obstruction occurs as a consequence of trees that are the subject of the application concerned .

13 Section 14D(2) provides the powers to make an order under subsection (1).

14 Section 14E(2) provides:

14E Matters of which Court must be satisfied before making an order

.

(2) The Court must not make an order under this Part unless it is satisfied that:

(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.

15 Section 14F provides for the matters to be considered by the Court before determining an application.

Findings

Section 14A

16 Based on the site inspection, we are satisfied that the 3 x hibiscus and 14 x bamboo plants satisfy the requirements of s 14A(1) in that the group of trees contains two or more trees (s 14A(1)); are planted so as to form a hedge (s 14A(1)(a)) and have height of at least 2.5 m (s 14A(1)(b)).

Section 14D(1)(b)

View from a dwelling

17 Section 14D(1)(b) raises two separate matters. First, there must be an obstruction of "any view" from the applicants' dwelling and second, any obstruction must be "severe".

The Coorey property

18 We are satisfied that there is a view available in an easterly direction towards the Pacific Ocean. It is a view over existing rooftops, but it is a view that could reasonably be seen as valuable and a desirable asset from the applicants' property. Presently, these views are largely blocked by the hibiscus and as such we accept that the obstruction is "severe".

19 With the benefit of the site view, we are not satisfied that the extent of pruning proposed by the applicants or the respondents is appropriate in this case. We have little difficulty in concluding that the pruning of T1-T3 is appropriate and that reasonable access to views for the applicants can be obtained and at the same time reasonable levels of privacy can be provided for the respondents. The adoption of proposed levels of pruning suggested by the applicants or respondents will clearly provide an imbalance in favour of those suggesting their level of pruning.

20 In our opinion, the appropriate level of pruning would be at a level 1.3 m above the applicants' balcony or 4.4 m from the base of the trees. This will allow views to be obtained to the Pacific Ocean from the balcony and the dining room in a standing position. In our view, to provide views from sitting position would require excessive pruning and would not achieve a reasonable balance between providing views for the applicants and protecting the privacy on the Coorey property. If maintained to this level we are satisfied that acceptable levels of privacy would be available to the Coorey property, given the relatively large change in levels, the height and canopy spread of the hibiscus and the distance from the boundary of the balcony. While glimpses of the front door may be available we do not accept that this is an unreasonable impact given that the hibiscus will screen the area immediately adjoining the common boundary. We note that areas of the backyard can be readily viewed from the applicants' balcony, albeit at an oblique angle.

21 To minimise pruning and inconvenience, we proposed to order that the trees be pruned to this level annually and are to be carried out 2 weeks either side of the anniversary of the date of these orders.

22 In accordance with s 14E(2)(a)(ii), we are satisfied that the trees are severely obstructing a view from a dwelling situated on the applicant's land, and as such, an order can be made in relation to this contention.

The O'Sullivan property

23 The requirement in s 14D(1)(b) is that the view must be "from a dwelling". We do not accept that the swimming pool (V4), the northerly area adjoining the pool (V5) and the patio area adjoining the doors to the main bedroom (V6) can be seen as a view "from a dwelling" and as such theses views fall outside the jurisdiction of the Act. We are not satisfied that the view from northerly windows and full height glass doors that lead to the patio area provide any views of significance and any possible views of the Pacific Ocean are obscured by the dwelling at 18 Alexandria Parade. As a result, we do not propose to make orders with respect to views from this location.

24 We are satisfied that there is a view available in an easterly direction towards the Pacific Ocean from V1-V3. It is a view over existing rooftops, but it is a view that could reasonably be seen as valuable and a desirable asset from the applicants' property, even from a bedroom and bathroom. Presently, the bamboo blocks these views and as such we accept that the obstruction is "severe". In our view, this finding is still valid even though some limited filtered views are available through the bamboo.

25 The relevant part of the hedge is the southern portion of the bamboo up to the north-eastern corner of the applicant's dwelling where it returns to the terrace. As previously stated, the Court has no jurisdiction to interfere with the hedge adjacent to the terrace and the pool. Therefore orders for pruning can only apply to the southern portion of the bamboo. Because of the difficulty in identifying the specific clumps of bamboo, we propose to delineate the area required for pruning as an extension of the northern bedroom wall of the applicants' dwelling.

26 With the benefit of the site view, we are not satisfied that the extent of pruning proposed by the applicants or the respondent is appropriate in this case. We have little difficulty in concluding that the pruning of the bamboo is appropriate and that reasonable access to views for the applicants can be obtained and at the same time reasonable levels of privacy can be provided for the respondent. The adoption of proposed levels of pruning suggested by the applicants or respondent will clearly provide an imbalance in favour of those suggesting their level of pruning.

27 In our opinion, the appropriate level of pruning would be at a level 1.3 m above the applicant's balcony or 4.4 m from the base of the trees. This will allow views to be obtained to the Pacific Ocean from the bedroom and the bathroom in a standing position, which is appropriate given the use of the affected rooms and at the same time provide an acceptable level of privacy to the O'Sullivan property. To minimise pruning and inconvenience, we proposed to order that the trees be pruned to this level annually and within 14 weeks either side of the date of this order. If maintained to this level we are satisfied that acceptable levels of privacy would be available to the O'Sullivan property, given the relatively large change in levels, the height and spread of the stand of bamboo and the distance from the boundary of the balcony.

28 To minimise pruning and inconvenience, we proposed to order that the trees be pruned to this level annually and are to be carried out 2 weeks either side of the anniversary of the date of these orders.

29 In accordance with s 14E(2)(a)(ii), we are satisfied that the trees are severely obstructing a view from a dwelling situated on the applicant's land, and as such, an order can be made in relation to this contention.

Section 14F

30 Section 14F of the Act provides the matters to be considered by the Court before determining an application. Mr Coorey, for the respondents, urged the Court to utilise the provisions of s 14F(s) which provide for "such other matters as the Court considers relevant in the circumstances of the case". These other matters involve an alleged non-compliance with the conditions of consent for the alterations and additions to the applicants' property and the alleged behaviour of the applicant with his neighbours. These are set out in affidavits filed by the respondents in the proceedings. We respectfully decline such a suggestion and have based our decision purely on achieving a balance between the preservation of views from the applicants dwelling and the protection of privacy for the respondents.

Who should pay?

31 We find that as the benefit goes to the applicants, the cost of the initial pruning of each hedge should be shared equally by the owner of the hedges in question and the applicants. Thereafter, the responsibility for ongoing pruning will rest with the respondents to maintain their respective hedges or parts thereof in accordance with the orders in the following paragraphs.

32 Having regard to the balancing inherent in s 14E(2)(b), and to minimise pruning and inconvenience we have decided to order annual pruning down to a specified minimum height. This pruning is to occur to minimise intervention with the plants and balance the need for the respondents' privacy and the provision of views to the applicants.

33 Given the location of the hedges relative to the applicants' property, the pruning should be undertaken from that property. The applicants are to provide all reasonable access for this to occur as long as adequate notice is given by the respondents.

Orders

34 For Appeal No 20996 of 2010, the Orders of the Court are:

(1) The application to prune the hibiscus trees (T1-T3) is upheld.

(2) The respondents are to engage and pay for an AQF 3 level horticulturist or arborist to prune the trees to a height of 1.3m above the height of the balcony adjoining the applicants' living room.

(3) The work is to be carried out in accordance with AS4373:2007 using a combination of reduction and remedial pruning techniques as described in that standard.

(4) The initial pruning is to be carried out within 30 days of the date of these orders.

(5) The applicants are to provide all reasonable access for this work to be undertaken in a safe and efficient manner.

(6) The respondents are to give the applicants at least 3 working days notice of the commencement of the work.

(7) The applicants are to reimburse the respondents 50% of the cost of the initial pruning within 21 days of the receipt of a tax invoice for the completed work.

(8) Orders (2)-(7) inclusive are to be carried out 2 weeks either side of the anniversary of the date of these orders.

(9) The respondents are to bear the cost of the annual pruning.

(10) The exhibits are retained.

35 For Appeal No 21057 of 2010, the Orders of the Court are:

(1) The application to prune the bamboo is upheld.

(2) The respondent is to engage and pay for an AQF 3 level horticulturist or arborist to prune the southern portion of the bamboo hedge to a point adjacent to the north-eastern corner of the applicants' dwelling to a height of 1.3 m above the height of the terrace at the northern end of the applicants' dwelling.

(3) The work is to be carried out in accordance with AS4373:2007 using a combination of reduction and remedial pruning techniques as described in that standard.

(4) The initial pruning is to be carried out within 30 days of the date of these orders.

(5) The applicants are to provide all reasonable access for this work to be undertaken in a safe and efficient manner.

(6) The respondent is to give the applicants at least 3 working days notice of the commencement of the work.

(7) The applicants are to reimburse the respondent 50% of the cost of the initial pruning within 21 days of the receipt of a tax invoice for the completed work.

(8) Orders (2)-(7) inclusive are to be carried out 2 weeks either side of the anniversary of the date of these orders.

(9) The respondent is to bear the cost of the annual pruning.

(10) The exhibits are retained.

G T Brown

Commissioner of the Court

Judy Fakes

Commissioner of the Court

Decision last updated: 01 June 2011