Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356

Land and Environment Court New South Wales

Medium Neutral Citation: Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 Hearing dates: 26 August 2015 Date of orders: 26 August 2015 Decision date: 26 August 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; adjoining land; insufficient evidence of view available at time of purchase Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali [2010] NSWLEC 1334). Haindl v Daisch [2011] NSWLEC 1145 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 McDougall v Philip [2011] NSWLEC 1280 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Category: Principal judgment Parties: Mr S Kiely (Applicant: both matters) Mr J Willock (Respondent: 15/20488) Mr M Williams and Ms R Bourke (15/20489) Representation: Applicant: Mr P Rawling (Agent) Respondent: Mr J Willock (Litigant in person)15/20488: Respondents: Mr M Williams and Ms R Bourke (Litigants in person) 15/20489: File Number(s): 20488 of 2015; 20489 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: In 2009 the applicant purchased a unit in Queenscliff in the block of units known as "Seachange". He contends that since that time, five Casuarina glauca trees on the opposite side of the road have grown to the extent that they now severely obstruct his views from his living room, balcony and main bedroom of Manly Beach and the ocean beyond. The respondents are the owners of the two lots/units on that site. 2. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the trees, or in the alternative, the pruning of the trees to a height 1m below the ridge cap of the respondents' roof line. The applicant proposes to contribute 50% of the cost of pruning and maintenance. 3. By way of background, the respondents permitted one of the owners of a unit in 'Seachange' to submit a Development Application (DA) to Warringah Council for reduction pruning by up to 30% for view restoration. The DA was submitted on behalf of eight owners of 'Seachange' units and included the five trees the subject of this application and one additional Casuarina. Council inspected the trees and permitted the removal of Trees 2 and 3 on the basis of their structural condition (subject to replacement), and the removal of Tree 6 because of its proximity to a retaining wall. The pruning of the remaining trees was refused because the type of pruning sought by 'Seachange' is categorised as 'lopping' or 'topping' which are unacceptable practices under AS4373:2007 Pruning of Amenity Trees. The council documentation included in the respondents' evidence states that pruning up to 10% of the existing canopies and removal of dead wood in accordance with AS4373 are permitted without council's consent. While the respondents have this consent, they are under no obligation to proceed with it. 4. The respondents consider they have attempted to accommodate the desires of the owners of 'Seachange' however the orders sought by the applicant are unreasonable and unacceptable. In their opinion, topping the trees will be detrimental to the health and appearance of the trees. According to one of the respondents, the trees were established on the property when he purchased his unit in 1976. The other respondents note that the trees were well-established and clearly present when the applicant's unit block was completed in 2006 and when the applicant purchased his unit in 2009. All respondents value the trees for the privacy and shade they afford their property as well as the benefits they provide to the streetscape and wildlife. 5. In applications under the Trees Act in general, and under Part 2A in particular, there are a number of jurisdictional tests that must be satisfied before the Court's powers to make orders under s 14D are engaged. 6. Section 14B enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling and or a severe obstruction of a view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which the Act applies being situated on adjoining land. That is, the obstruction must be severe, the trees must be trees to which Part 2A applies, and the trees must be on adjoining land. 7. In P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, the very first matter heard under the Trees Act, the Court held at [5]-[6], in citing Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, that a property can be regarded as adjoining another property which is across the road. Therefore, I am satisfied that the trees in question are on adjoining land as the parties' properties are directly across the road from one another. 8. Section 14A(1) states that Part 2A applies to groups of two or more trees that have been planted (whether in the ground or otherwise) so as to form a hedge and which rise to a height of at least 2.5m. The trees were planted many years ago and the intent of the planting is unknown however, with the horticultural and arboricultural expertise I bring to the Court, I am satisfied on the basis of the species, arrangement and the spacing between them, that the trees in question form two hedges and are therefore trees to which the Part applies. I have identified two hedges on the basis of the 4m spacing between Tree 1 and 2 (hedge 1), and a gap of 7m to Tree 3, and then 4m spacings between Trees 3, 4 and 5 (hedge 2). 9. The next relevant jurisdictional test is 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. 1. The views in question are views of Manly Beach including the sand and surf line and the sea beyond. While the application claim form does not identify particular viewing points, the views generally to the south and east are from the applicant's living area and associated balcony, the main bedroom, and to a lesser extent from the balcony adjoining a secondary bedroom. 2. At the time of the hearing there was a limited and filtered view through the trees of the beach but a relatively open view across the ocean to the northern side of North Head. 3. While I would be prepared to find that the view of the beach is severely obstructed by the respondents' trees, the overall view of the ocean and other landmarks is not severely obstructed. As discussed in Haindl v Daisch [2011] NSWLEC 1145 at [26], the Court considers the view as a whole and not on a slice by slice basis. The view loss is perhaps just below the threshold of 'severe' when the dictionary meanings of 'severe' are considered. Perhaps the most apposite synonym is 'extreme' (see Ball v Bahramali [2010] NSWLEC 1334). The view loss in this case is not extreme however, even if it reached that threshold and met the criteria in s 14E(2)(a)(ii), critical in the consideration of the balancing required by s 14E(2)(b) is what view was available to the applicant when he purchased his unit? 4. As stated above, the applicant purchased his unit in 2009 some three years after its construction. The only evidence adduced by the applicant of the views said to be lost comprises two black and white photocopies of photographs taken in 2006 from another unit at the same level but some distance to the south. The clearer of the two photocopies shows Tree 5 at a height well above the ridge line of the respondents' property. This photograph also demonstrates that the unit from where it was taken had a generally unobstructed view of Manly Beach at that time. The other photograph taken towards the east/ northeast is very difficult to interpret and is of little assistance. 5. Photographs in the respondents' evidence include coloured photocopies of photographs taken in 2003, in 2005 during the construction of the applicant's unit block, and in 2008/9 from perhaps the level below the applicant's unit. The 2008/9 photograph shows that all the trees were at or above the ridge line of the respondents' property at approximately the time the applicant purchased his unit. 6. As discussed in detail in McDougall v Philip [2011] NSWLEC 1280 at [19]-[24], the intent of Part 2A is not to enable an applicant to seek orders against their neighbours so as to gain a view they did not have when they purchased their property 7. While the applicant probably had more of a view of the water than he does now, he has not provided any evidence to substantiate his claim; the onus in these matters is on an applicant to prove their case. At best the evidence is inconclusive and insufficient to satisfy s 14E. I agree with the respondents that the orders sought are unreasonable in the circumstances as they would either remove the trees in their entirety or take the trees to a height well below the height they were likely to have been in 2009. 8. At the Court's jurisdiction is not engaged, the Orders of the Court are: 1. The application is dismissed. ________________________ Judy Fakes Commissioner of the Court