Land and Environment Court New South Wales

• Medium Neutral Citation: Bowen v Martin [2011] NSWLEC 1195
• Hearing dates: 12 July 2011
• Decision date: 12 July 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; no jurisdiction over some hedges; no severe obstruction of views found
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Wisdom v Payn [2011] NSWLEC 1012; McLaren v Lewis [2011] NSWLEC 1170; Haindl v Daisch [2011] NSWLEC 1145; Tenacity Consulting v Warringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mr J Bowden (Applicant); Mrs C Bowden (Applicant); Ms R Martin (Respondent)
• Representation: Applicants: J & C Bowden (Litigants in person); Respondent: R Martin (Litigant in person)
• File Number(s): 20249 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Dunbogan against the owner of trees growing on an adjoining property.

2 The applicants are seeking orders to limit the height to 2.5m of all trees and hedges on the side and rear boundaries of the respondent's property that have blocked, or may in the future block, their view.

3 The application lists 12 'trees' comprised of groups of trees and two single trees, as well as 5 viewing points.

4 The respondent has proposed alternative orders for two of the hedges. She suggests that Hedge 1 could be pruned to 3.5m and maintained at a height of 4m, but only if the trees are capable of being pruned to this height. She also suggests that the southern 3m of hedge 3 could be reduced in order to extend the applicants' view. However, the respondent does not wish to reduce the height of hedge 2 and the remainder of hedge 3 as she values the trees for the privacy they afford her property.

5 The application is made pursuant to s 14B(b) of the Trees Act. This enables an owner of a property to apply to the Court to remedy, restrain or prevent the severe obstruction of any view from a dwelling on the applicant's land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. There is no dispute that the trees subject to the application are on adjoining land.

6 Part 14A states that Part 2A applies to groups of two or more trees, planted so as to form a hedge, and which rise to a height of at least 2.5m above ground level.

7 Therefore, given the number of trees/hedges nominated by the applicants, the first jurisdictional test is to determine whether the trees, for which the applicants seek orders, are a hedge for the purpose of the Act.

8 The hedges are described as follows. The names in brackets are the species incorrectly identified in the application.

Tree/ Hedge Number	Species	Number of trees	Approximate height (m)
1	Cupaniopsis sp / Tuckeroo	11	6
2	Metrosideros sp/NZ Christmas Bush	7	4.5
3	Hibiscus tiliaceous	13	4
4	Casuarina equisetifolia	12	1.2
5	Hibiscus	7	1.5
6	Cupaniopsis	1	3
7	Alectryon coronaceous (Hibiscus)	4	<2.5
8	Oleander	Were 14 now zero	-
9	Alectryon coronaceous (Hibiscus)	4	<2.5
10	Hibiscus	4	<2.5
11	Hibiscus	9	<2.5
12	Olea europaea (Melaleuca)	1	3

9 With respect to the 'hedges', Hedge 8 has been removed. Of the remaining, the Court has no jurisdiction to consider hedges 4,5,7,8, 9, 10 and 11 as they are less than 2.5m.

10 Tree 12 is a single specimen tree pruned as a standard. It is a considerable distance from any other tree and it would not reasonably be perceived by anyone viewing the garden as forming a hedge. Therefore, it too will not be considered.

11 As to whether tree 6 meets the tests in s 14A, is in dispute. The applicants contend that it forms part of hedges 5 and 7. The respondent contends that it is a single tree.

12 The Act does not define a 'hedge'. To date, the Court has taken a flexible approach in its interpretation of s 14A(1). This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [45], [66], [67] and elsewhere, and in McLaren v Lewis [2011] NSWLEC 1170 at [21]-[28]. Relevantly, s 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).

13 Whilst tree 6 appears to be a much older planting, or even self-sown as suggested by the respondent, it is in close proximity to row of shrubs forming hedges 5 and 7, and visually forms a mass of plants near the southern boundary. However, it is the only plant in that group that is in excess of 2.5 m tall. As there are not 2 or more trees that exceed 2.5 m in that group, I am satisfied that even combining it with hedge 5 or 7, those hedges, and therefore that individual component, would still fail to meet the tests in s 14A.

14 The 5 viewing points nominated in the application are all located on the upper level of the applicants' dwelling. This is their main living area. The applicants' dwelling is orientated in a north-south direction, with the north/front facing the street and the south/rear facing Dunbogan Beach and the ocean. The respondent's property is to the east. Between the parties' properties and the beach is a large privately owned, mostly undeveloped block designated as 'coastal protection'.

15 Viewing point 1 (V1) is a balcony on the northern side of the dwelling on which there is a small table and two chairs. This balcony overlooks applicants' front garden. The view from this balcony includes district views across Dunbogan to North Brother, the applicants' front garden and streetscape, and views to the northeast of Hedge 1 - a row of Tuckeroos. The view the applicants say they have lost is of district views across the respondent's front garden to the trees in a council bush reserve adjoining Googleys Bay to the northeast.

16 V2 is an east-facing window of the sitting room. V3 is the south-facing window in this room. The view through V2 directly to the east is of the upper storey of the respondent's dwelling to a bedroom. It is partially obscured by hedge 2. The view in contention from both viewing points, is the view to the southeast across the side boundary to Dunbogan Beach. In this room are a small table and two chairs, a 2-seat sofa and two lounge chairs. When seated at the south-facing chair I saw a filtered view through hedge 2 of the breaking waves and ocean beyond. The shoreline was not visible. I noted that the hedges along the southern boundary of the respondent's property (hedges 5-11) limited any view of the shoreline.

17 The two lounge chairs in this room face south and the main view is through V3 to the south to Dunbogan Beach. This window is partly blocked by the sofa, which faces north. The view to the south through V3 is across grassed hind dunes and clumps of low vegetation to the ocean. The view includes hedge 3 to the southeast and a copse of under-pruned Banksias on the adjoining land to the south in the south-western part of the view.

18 V4 is the east-facing window of the dining room. This addition was built in 2007 on the southern or ocean-facing side of the applicants' dwelling. V5 is an expanse of windows facing south. The view to the east through V4 includes hedge 3, the respondent's dwelling, the dwelling to the east of the respondent's property and a remnant stand of Banksias on the foreshore associated with that property. Again it is the view to the southeast, diagonally across the respondent's property that is contested and somewhat obstructed by hedge 3. At this window is another table and chairs where the applicants say they have breakfast. It is only the south-facing chair that obtains any view of the water.

19 V5 is the large south-facing window of the dining room. The view from this window is as for V3 but wider. Again, the view to the southeast is in contention. The applicants contend that when they moved into their property in 2001 they had uninterrupted views to the southeast. They said they were able to watch their grandchildren take an informal track through the vegetation on the hind dunes down to the area locally used as 'the beach'. They say that the full extent of that view is now unavailable to them because of their neighbour's trees. They are seeking orders to restore those views.

20 The respondent contends that if the trees were reduced to the height the applicants suggest there would be little privacy for anyone in the garden, the outdoor entertaining area and downstairs rooms. The trees along the respondent's western boundary also provide screening of a dwelling to the west of the applicants' property as well as provide wind protection and food/ habitat for wildlife.

21 In determining applications made under s 14B of the Act, the Court must consider a number of jurisdictional tests. The tests in s 14A have been dealt with. The next significant test is s 14E(2). This states (relevantly):

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

(a) the trees concerned:

(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 interests in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees may making an order under this Part.

22 Therefore, this is a two-step process. The first step is to determine if the trees are severely obstructing the view, and then if they are, the second step, requiring the balancing of interests, is taken. If the second step is necessary, the matters listed in s 14F must be considered. The use of the word 'severely' in s 14E(2)(a)(ii), sets the bar at a high level.

23 Assessing the severity of an obstruction of a view requires an assessment of the entire view from a viewing point. In Haindl v Daisch [2011] NSWLEC 1145 at [26], Moore SC and Hewett AC state:

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 obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

24 All views contain various elements. I consider that the limited viewing position from the one chair on the balcony that faces northeast cannot be given much weight in determining whether or not hedge 1 severely obstructs a view from that part of the applicants' dwelling. The totality of the view from V1 is broad and includes North Brother to the northwest, the front garden and streetscape in the central portion and hedge 1 to the northeast. It is only the view across the side boundary and the respondent's front garden that is obstructed and that view is said to be district views of more distant trees. While that element of the view may be a pleasant district view, so too is the full extent of the view from V1. Therefore I do not consider that hedge 1 severely obstructs a view from V1 and no orders will be made for any intervention with any tree in hedge 1.

25 In determining applications made pursuant to s 14B in respect of views, the Court has often referred to the planning principle on view sharing discussed in Tenacity Consulting v Warringah [2004] NSWLEC 140. There are several steps in assessing issues relating to views in that decision that are relevant to the determination of applications made under s14B(b). In the matter before the Court, these steps are useful in considering the severity of the obstruction of views from V2 to V5.

26 In the sitting room, the predominant view is to the south. Again, considering the totality of the view, from both sitting and standing positions, the view includes the view through the glass doors and the balcony (V1) to the north, views to the east of the respondent's vegetation and dwelling (V2), views to the southeast and hedge 2, as well as views through V3 to the ocean to the south. The applicants are seeking the restoration of a narrow view corridor across a side boundary from a seated position. In the lounge room the view includes the dwellings and vegetation to the east (V4), partial views of the ocean to the southeast through hedge 3, and extensive views of the ocean and breaking waves to the south (V5).

27 Firstly, what is the nature of the view? It is generally accepted that views of water are valued more highly than views of land. Whole views are valued more highly than partial views. In this case, in both the sitting room and the lounge room, the view to which the eye is drawn is of the beach and ocean to the south. However, I accept that the view of the ocean to the southeast is somewhat obscured by hedge 2 (from V2/3) and hedge 3 (from V3/4/5).

28 The second consideration is from where the view is seen. In this matter, the view is principally seen from the main living areas. However, the view in contention is a view across a side boundary and therefore more difficult to protect. Sitting views are more difficult to protect than standing views. The expectation of retaining sitting views across side boundaries over time is often unrealistic.

29 The third consideration is the extent of the view that is lost. In this matter I find that the view lost is only a small proportion of the views the applicants had the benefit of when they moved in. All views to the southeast are limited by the Banksias on the coastal protection zone two doors to the east. Whilst I accept that there is some obstruction of the south-eastern view by hedges 2 and 3 from V2-V5, I do not consider it to be a 'severe' obstruction of the totality of the view from any of those viewing points.

30 In Tenacity , view loss, and effectively its impact, is ranked from negligible, minor, moderate, severe, to devastating. In Tenacity the proposed development would have obliterated what was described as a magnificent view from three out of four levels of a unit block. The impact was deemed to be 'severe'. Hence the Court has determined that the use of the word 'severe' in the Trees Act puts the test at a high level.

31 Therefore as none of the hedges that meet the test in s 14A severely obstruct any of the nominated views, the test in s 14E(2)(a)(ii) is not met and no orders can be made for any intervention with any of the hedges. In this regard, there is no requirement to consider the balancing of interests inherent is s 14E(2)(b).

32 Therefore, as a consequence of the forgoing, the Orders of the Court are:

(1) The application is dismissed.

__________________________

J Fakes

Commissioner of the Court

Decision last updated: 15 July 2011