Land and Environment Court New South Wales

• Medium Neutral Citation: Golchin & Ors v Lakis & Anor [2012] NSWLEC 1180
• Hearing dates: 8 June 2012
• Decision date: 06 July 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application to prune and maintain three trees in the respondents' property is upheld in part.

(2)Within 30 days of the date of these Orders the respondents are to prune the three trees T1, T2 and T3 to a height not exceeding 4 m measured from ground level at the base of each tree.

(3)The respondents are to maintain the three trees T1, T2 and T3 at a height no greater than 4.5 m, measured from ground level at the base of each tree, into the future.

(4)The exhibits are retained.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; iconic views; severe obstruction; pruning ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mr Abdolrahim Golchin (First Applicant); Mr Kian Golchin (Second Applicant); Ms Leila Golchin (Third Applicant); Mr Edward Ted Lakis (First respondent); Ms Cassiani Tassis (Second respondent)
• Representation: Mr Simon Brockwell (Counsel for the applicants); Mr Edward Lakis (Respondent in person)
• File Number(s): 20083 of 2012

Judgment

1 COMMISSIONER: The owners of a property in Vaucluse claim that views they once enjoyed of Sydney Harbour, the Harbour Bridge and the Sydney Opera House have become obstructed by neighbouring trees. Three members of the Golchin family have applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for pruning of the trees to a suitable height and maintenance of those trees at a suitable height.

2 Mr Lakis, an owner of the neighbouring property on which the trees grow, disputes the severity of view obstruction and says the extent of pruning sought by the applicants is excessive.

3 Before the Court can make any orders regarding the trees, I must determine if the trees form a hedge as required by the Act and if they severely obstruct a view. Only if these jurisdictional tests are satisfied may I proceed to make orders, as I think fit, to remedy, restrain or prevent the view obstruction.

The onsite view

4 The hearing took place onsite, allowing observations of the trees and of the views from each of the viewpoints highlighted in the application.

5 Beginning on the applicants' property, we observed the views from the two viewpoints from which they contend their view has become obstructed.

6 V1 is the view from the family room, where there are five glass panels. At the outset, it is important to note that I am considerably taller than all three applicants. From my full standing position I could see parts of the view that the applicants could not see while standing; however by bending down I could assess the degree of obstruction of their view. From various standing positions it is clear that, looking to the west, views through the window to the Opera House, the Harbour Bridge, the city and the harbour are obstructed by vegetation on the neighbouring property. Part of the view is available through the first two panels at the southern end of this viewpoint. The view is generally obstructed from a sitting position as well as from most standing positions across the room. From V1 Mr Lakis pointed out the privacy screen on the applicants' balcony, which shall be addressed later in this judgment.

7 V2 is the view through the three glass panels in the dining room. The Harbour Bridge can be seen but the view of the Opera House and the water of the harbour is obstructed from the applicants' standing positions, as well as from seated positions at the dining table, by vegetation on the neighbouring property. There are also transient views through V2 from further back in the entry and as one moves from the lounge to the dining room - views that are also obstructed by the neighbouring vegetation. The applicants contend that they enjoyed uninterrupted views from here prior to growth of the neighbouring trees. From V2 Mr Lakis contends that there is no view obstruction from the third (northernmost) panel, and that an external structural pillar of the applicants' dwelling blocks the view, at least of the Opera House, from the other two panels. On my observation the pillar does not block the view from the middle panel but does block part of the view from the southern panel. Mr Lakis also contends that views would be blocked by more distant trees; however I note that the tree or trees he pointed out would not cause a severe obstruction of the view from here.

8 Moving to Mr Lakis' property, the trees were measured with a height pole. The three trees are planted in an L-shape. T2, near the northern corner of his land is a 3.5 m tall Wattle. T1, approximately 2.5 m to the southwest, is a 5.4 m tall Wattle. T3, approximately 3 m to the southeast of T2, is a 5.2 m Bottlebrush. The trees' crowns overlap, forming a continuous linear arrangement extending along the two boundaries from the northern corner of the property. A fourth tree that extended this planting further to the southwest is now dead

9 Mr Lakis took us to his downstairs balcony to demonstrate that the trees provide privacy screening from the dwelling to the west. I observed that privacy would still be provided to this point by trees that were one metre shorter.

10 We were also taken to the property to the west, 3 Kings Road, where Mrs Meade, the owner and occupier, stated that she would be happy for the trees to be trimmed and she is not concerned about any loss of privacy.

Do the trees form a hedge?

11 The first jurisdictional test is at S 14A(1) of the Act:

(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 m (above existing ground level).

12 The three trees form a single group and are over 2.5 m tall. They form a hedge-like planting extending along two boundaries of the respondents' land from its northern corner. The trees have all been planted, although there is some dispute about when this was. The applicants, who have owned their property since 2001, state that all three trees were planted by the respondents in or around early 2008. Mr Lakis says the Bottlebrush (T3) was on his land when he purchased in 2002 and that only the Wattles were planted in 2008. He provided no evidence of this. The applicants' affidavits, however, include photographs taken in or around 2002 (Annexure 5, Exhibit C, for instance) that they say show the trees were not present at that time. It is unclear to me from the photographs if the trees were present or not, as some vegetation can be seen near the boundary, although it is little more than fence height and would not have obstructed a view. Regardless of their time of planting, the visual impression of the three trees is that they form a continuous hedge of plants with similar heights and foliage. The impression, especially from the applicants' viewpoints, is that the plants form a continuous border of vegetation along the respondents' boundary. No one plant is distinct from the others. I therefore accept that Part 2A applies to the trees.

Is there a severe obstruction of a view?

13 The applicants submit that there is a severe obstruction of an iconic view from their dwelling. Mr Brockwell referred the Court to Tenacity Consulting v Waringah [2004] NSWLEC 140. In setting out a principle for assessing the impact of view loss in that matter, Roseth SC adopted a four-step assessment process, as below.

(26). The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

(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.

(28). The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

(29). The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

14 Using this process, I find that, firstly, the view from both V1 and V2 includes iconic views and that, without the neighbouring vegetation, the views would be whole views including the interface between land and water. Secondly, the views are across both the rear and side boundaries but are principally toward the rear, looking out the windows at the rear of the dwelling. Without the vegetation the views could be enjoyed from both standing and sitting positions. The view is currently lost to the applicants even from standing positions. Thirdly, the views are from the main living areas of the dwelling. Views of the Opera House and Harbour Bridge, although partially remaining from certain corners of the rooms, are completely lost from the areas most likely to be used. This loss is more than moderate - at the least it is severe. And finally the loss of views is not caused by built form but by vegetation that was planted, has grown and can be maintained at a specified height.

15 Mr Lakis made several submissions about the views and their obstruction. He pointed out that a pillar blocks part of the view from V2 and that trees that are more distant in the landscape would also obstruct the view. While I accept that the pillar obstructs the view from the southern end of V2, I find that the iconic views described above would be available from the majority of the standing positions at V2. Based on my own observations I note that trees in the more distant landscape do not severely obstruct the iconic views described above from either V1 or V2. Mr Lakis asked the Court to consider the height from which many of the photos in the applicants' evidence were taken. I have done this and based on my observations of those photographs and my own assessment of the views from both V1 and V2 I conclude that the applicants did enjoy iconic views prior to the vegetation growing to its current height.

16 Consequently, I accept that the trees concerned are severely obstructing a view from the applicants' dwelling, satisfying the jurisdictional test at s 14E(2)(a)(ii).

17 Because the trees are not old trees that have never been pruned, and they are not large significant trees, they can be pruned to maintain them at a given height. However reducing their height excessively is likely to adversely affect their vigour and structural condition. The parties have each proposed suitable heights to which the trees should be pruned. The most suitable height will be determined below. However I conclude that some pruning is possible and would indeed be desirable, to remove and restrain the view obstruction caused by the three trees. Therefore the test at s 14E(2)(b) is also satisfied and I can make orders as I see fit and as described in s 14D after considering the matters in s 14F.

The privacy screen on the applicants' dwelling

18 Before considering other matters under s 14F, I will address the issue of a privacy screen, as this was raised in evidence and submissions. The applicants made additions to their dwelling during 2007 and 2008 in accordance with Development Consent received in November 2007. The building footprint was not altered and V1 and V2 existed prior to the alterations. Excerpts of the development conditions and a Final Occupation Certificate are included as Annexures in Exhibit C. Mr Lakis states that the privacy screen at the southern end of the applicants' rear balcony, providing privacy between his property and the applicants', is not in accordance with the development conditions as it has louvres that can be opened. He has complained to the applicants about the screen's effectiveness since its construction. The hedge does not provide privacy between the applicants' and respondents' properties, so the issue of privacy provided by the screen is not relevant to my determination. Whether or not the applicants' works satisfy the development consent is not a matter for the Court's jurisdiction here. The only possible relevance of this issue is that, because the screen has louvres, it allows a view that would otherwise not exist and that this view is now obstructed by the hedge. Even if this is true, louvred screens would permit an otherwise non-existing view only from the very southern end of V1, near the wall. This is not the main viewing point of V1. If the screen was completely opaque the view from most of V1 would still exist and would still be severely obstructed by the trees. Therefore the existence and form of the privacy screen does not affect my determination of this matter. Just as the Court must not confuse separate issues, all parties might be reminded to deal with unrelated issues separately.

Matters to be considered

19 The relevant clauses in s 14F are:

(a)The trees are wholly located on the respondents' property, close to the boundary.

(b)The applicants' dwelling and viewpoints existed before the trees were planted.

(c)The trees appear to have grown to their current height of greater than 2.5 m during the period the applicants have owned the land.

(e)There was no evidence to suggest that the trees were planted as a condition of development consent for the respondents' property. According to the applicants their additions were built in accordance with their development consent. The respondents dispute this but this has been addressed above at [18].

(g)The trees will contribute, albeit it in a small way, to the local ecosystem and to biodiversity.

(h)The trees contribute to the scenic value of the land on which they are growing.

(i)The trees have little value to public amenity.

(k)The trees are all species that can be pruned, although the pruning must not be excessive. This is discussed further below.

(l)The trees contribute to the privacy and general amenity of the respondents' property, particularly privacy to and from the dwelling to the west. If pruning of the trees is not excessive this privacy could be maintained.

(m)With respect to things other than the hedge obstructing the view, I have previously noted minor contribution of a pillar that is part of the applicants' dwelling and the minor contribution of the privacy screen. Other trees on more distant properties may obstruct small parts of the view but they do not severely obstruct the iconic views available from V1 and V2.

(n)The applicants have asked the respondents to prune the trees to restore their views. The respondents have pruned the trees as recently as March 2012.

(p)The trees are all evergreen species.

(q)The available views are iconic, as previously stated. While views of sky, landscape and parts of the water remain, the iconic views are lost from most standing positions at both V1 and V2.

(r)The parts of the dwelling from which the views are obstructed are the family room and dining room, both areas of frequent use by all occupants.

Extent of pruning required

20 Having determined that pruning could restore the applicants' views while maintaining the trees' benefits to the respondents, the final matter to be determined is the extent of such pruning. Mr Lakis is concerned that the pruning sought by the applicants is excessive and will harm the trees. The application sought orders for pruning to a height of no more than 2 m, however at the hearing Mr Brockwell stated that the applicants would be satisfied if the trees were pruned to a height of no more than 4 m and maintained at a height of no more than 4.5 m. Mr Lakis expressed his willingness to prune the trees to a height of 4.5 m and to maintain them at no more than 5 m. While I appreciate Mr Lakis' concerns about the trees' condition, I note that the T1 and T2 are relatively short-lived trees anyway, so any reasonable pruning regime is unlikely to affect his amenity in the long term. To be satisfied that the view is restored and maintained, I find that the applicants' proposal would be preferable.

Orders

21 As a result of the foregoing, the Orders of the Court are:

(1) The application to prune and maintain three trees in the respondents' property is upheld in part.

(2) Within 30 days of the date of these Orders the respondents are to prune the three trees T1, T2 and T3 to a height not exceeding 4 m measured from ground level at the base of each tree.

(3) The respondents are to maintain the three trees T1, T2 and T3 at a height no greater than 4.5 m, measured from ground level at the base of each tree, into the future.

(4) The exhibits are retained.

D Galwey

Acting Commissioner of the Court

Amendments

13 July 2012 - Formatting error.
Amended paragraphs: Paragraph 19 (e)

Decision last updated: 13 July 2012