Medway & anor v Smyth-King & anor [2015] NSWLEC 1011

Land and Environment Court New South Wales

Medium Neutral Citation: Medway & anor v Smyth-King & anor [2015] NSWLEC 1011 Hearing dates: 2 February 2015 Date of orders: 02 February 2015 Decision date: 02 February 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali [2010] NSWLEC 1334 Devile & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 122 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Category: Principal judgment Parties: H & W Medway (Applicants) E & J Smyth-King (Respondents) Representation: Counsel: Applicants: H & W Medway (Litigants in person) Respondents: E & J Smyth-King (Litigants in person)

Solicitors: File Number(s): 20814 of 2014

Judgment 1. COMMISSIONER: Section 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the applicant's land or a severe obstruction of any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 2. The applicants have applied to the Court for orders for the pruning and subsequent maintenance, three times a year, of a row of Leighton Green Leyland Cypress trees growing along the rear of the respondents' property in Leura. The applicants wish the trees to be pruned to a height of 3m. 3. The application is based on the applicants' contention that the trees severely obstruct views from their dwelling of the sunset and the valley. 4. In applications made under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied before the Court's powers to make orders under s 14D are engaged. 5. The first test is whether the trees are trees to which Part 2A applies (s 14A(1)). Part 2A applies to groups of two or more trees, planted so as to form a hedge, and which rise to a height of 2.5m. 6. The row of trees in question comprises 13 trees of varying heights; the tallest individual is about 4.5m tall. The respondents planted the trees along their rear boundary, the common boundary between the parties' properties, in order to create a privacy screen and to use water moving from upslope properties onto their property. The respondents stated that the trees were planted about 6 or so years ago. 7. The on-site hearing commenced with an inspection of the trees. There is no dispute that the trees are trees to which Part 2A of the Act applies. The range of heights appears to be a response to the degree of competition with larger trees and perhaps water availability. The respondents stated that they intend to trim the trees to about 4m to create a more formal hedge however as most of the trees are not yet at that height, the pruning has not yet commenced. 8. The next jurisdictional test is s 14E(1). I am satisfied to the necessary extent that the applicants have made a reasonable effort to reach an agreement with the respondents. 9. The key jurisdictional test in these matters is satisfaction of s 14E(2). This states: (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. 1. In determining the application, a number of discretionary matters are to be considered under 14F. 2. The nominated viewing points are at the rear of the applicants' dwelling. The applicants' property is located on a west facing slope, upslope of the respondents' property. At the rear of the ground level/ lower storey is a barbecue/ entertainment area adjoining double glass doors of a family room. The view to the west from this location includes the Leyland Cypress and many other trees on the respondents' and other nearby properties. The view from this area is framed by the applicants' garage to the southwest and trees on the applicants' property to the northwest. 3. The other nominated viewing locations are from windows adjoining a deck on the upper storey. V1 is from the dining room, V2 is from the double glass doors of an open-plan living area, and V3 is from a bedroom. Views from the upper level are more expansive than from the ground level but still constrained by trees on the northern boundary of the applicants' property. The view from V3 is primarily of the applicants' trees. 4. The row of trees in question are an element of a view dominated by trees of a wide range of species – evergreen/ deciduous, native/ exotic, of a range of age classes. The view of trees extends into the distance. On the day of the hearing, it was difficult to discern any distant features such as the valley or the shopping village of Leura to the west because of the complexity of the vegetation. 5. The applicants contend that for about 6 months of the year, the views of the valley are much clearer because many of the intervening trees are deciduous. If I understand their position, they say a row of evergreen trees severely obstructs this view at that time. The applicants also argue that the trees have a potential height in excess of 40m and that they could reach these dimensions in a relatively short time. 6. On the basis of the on-site hearing, I am not satisfied to the extent required by the Act, that the trees the subject of the application are severely obstructing any of the nominated views from the applicants' dwelling. 7. The trees in question are relatively small, with much taller trees beyond. The sky is still visible through these taller trees and thus it can be assumed that the sunset is still visible. The 'valley' is some distance away and there are many trees on many properties, and on public land, between the applicants' dwelling and the valley. While there might be a minor obstruction of the view arising from the respondents' trees, the major obstruction arises from other vegetation. 8. Whilst s 14B of the Act enables an applicant to seek orders to remedy, restrain or prevent a severe obstruction of a view, the use of the word are in s 14E(2)(a)(ii) requires the trees the subject of the application to be severely obstructing the view at the time of the hearing. This is discussed in Tooth v McCombie [2011] NSWLEC 1004 at paragraphs [14]-[15] and in more detail in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 122 at paragraphs [43]-[52]. Part 2A of the Trees Act was recently reviewed and this section of the Act remains as originally gazetted. 9. In assessing the severity of an obstruction of a view, the Court has regularly gained assistance from the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. In particular, the qualitative scale of impact from negligible to minor to moderate to severe to devastating, is useful in that it establishes the high bar set by the parliament when it drafted this legislation. A discussion of the meaning of the word 'severe' can be found in Ball v Bahramali [2010] NSWLEC 1334. 10. As I have found that s 14E(2)(a)(ii) is not satisfied, there is no need to consider s 14E(2)(b). However, as stated earlier, the respondents' have indicated their intent to prune the trees at some stage. Given the location of the respondents' property relative the applicants' and other upslope properties, their desire for some privacy and screening is not unreasonable. 11. As discussed in Devile & anor v Frith & anor [2014] NSWLEC 1002, if the circumstances change, a fresh application can be made. 12. Therefore as a consequence of the forgoing, the Orders of the Court are: 1. The application is dismissed. _________________________ Judy Fakes Commissioner of the Court