Taylor v Cicco [2016] NSWLEC 1498

Land and Environment Court New South Wales

Medium Neutral Citation: Taylor v Cicco [2016] NSWLEC 1498 Hearing dates: 25 October 2016 Date of orders: 28 October 2016 Decision date: 28 October 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge – views; obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Interpretation Act 1987 Cases Cited: Deville & anor v Frith & anor [2014] NSWLEC 1002 Haindl v Daisch [2011] NSWLEC 1145 Jayawardena v Salvia & anor [2015] NSWLEC 1191 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Adam Taylor (Applicant) Belinda Cicco (Respondent) Representation: Applicant: Mr A Taylor (Litigant in person) Respondent: Ms N Hammond (Barrister)

Solicitors: Respondent: Cohen & Krass File Number(s): 175678 of 2016

Judgment 1. COMMISSIONER: The applicant, Mr Taylor, purchased his apartment in 2013; he contends that since then, trees on the respondent's property have grown and now severely obstruct views from his dwelling. 2. Mr Taylor has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of four trees growing at the rear of the respondent's property. 3. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged. 4. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge? 5. There are five X Cupressocyparis leylandii (Leyland Cypress) [cultivar uncertain] planted along the rear boundary of the respondent's property. According to the respondent's sworn affidavit (Exhibit 1), the trees were planted in 1999 in order to provide a privacy screen between the applicant's unit block and the respondent's backyard. 6. The trees are linearly arranged and are in excess of 2.5m tall and are thus trees to which Part 2A applies. The tree closest to Mr Taylor's unit is the southernmost tree – identified in the application claim form as Tree 1. 7. The key test in applications made under Part 2A is found in s 14E(2) which 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. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. The application claim form (Exhibit A) identifies one viewing point – V1, Mr Taylor's home office. Further material submitted by Mr Taylor (Exhibit B) includes V2 – the view from the kitchen. Both windows face northeast. Undated photographs/figures 14-16 in Exhibit B are stated to show views from the windows taken in 2013 and 2016. Both exhibits include photographs and submissions relating to other units in the apartment block. None of these are relevant to Mr Taylor's application. 3. The photographs indicate that only the southern portion of the canopy of Tree 1 affects views from Mr Taylor's unit. There appears to have been approximately 500mm of lateral growth of Tree 1 since Mr Taylor purchased his unit in 2013. 4. In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature and extent of the view, the second the location from which the view is seen, including views available from the whole of the property, and the third considers the use of the rooms from which the views may be affected. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating. 5. The first step considers the nature of the view affected. In [26] of Tenacity it is considered that water and iconic views are valued more highly than views without water and whole views are valued more highly than partial views. Figure 14, in Exhibit B – 2013 view from V1, shows a portion of the Sydney CBD skyline on the horizon. The view is a partial view to the north-east through the southernmost panel of the two panel window. It is framed by Tree 1 and by large street trees growing in the near to mid distance. There is no evidence that the Harbour Bridge was visible from this position in 2013. Figure 15 shows the same view in 2016 although from a slightly different angle (slightly further to the north). As observed during the on-site hearing, the view of the skyline is more obstructed and only available from a more restricted viewing point in that room; however there are uninterrupted district views to the east and south-east. The views from V2 – the kitchen, being further away from Tree 1 are largely unaltered and include a distant but clear view of the Harbour Bridge, considered in Tenacity to be a view of an iconic structure, and parts of the city skyline. 6. The second step considers from what part of the property the views are obtained. In this case, the views are across a rear boundary, from sitting and standing positions for V1 and standing from V2. The standing views of the city skyline are still visible from parts of the home office and if the position of the desk was altered, some sitting views may be available, although it is not clear from Figure 14 in Exhibit B whether the city skyline could be seen from a sitting position as the position of the desk is not shown. 7. The third step is to assess the level of impact. This should be done across the whole of the property taking into consideration the use of the rooms from which the views are impacted. This step considers the quantitative and qualitative impacts, with the qualitative impact usually more applicable. Paragraph [28] in Tenacity includes a scale of impact from negligible, to minor, moderate, severe, to devastating. The impact on views from living areas, including kitchens, is considered more significant than those from bedrooms or service areas. In Mr Taylor's case, he asserts that as he spends 40-50 hours per week in his home office, it constitutes a living area. He also asserts that the extent of the blockage makes it difficult for him to work comfortably for long periods of time and that given the "large, ominous presence" outside his window he feels anxious and uncomfortable. 8. The Court has also considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state: 26 However, we are of the opinion that the words a view 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 the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 1. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act. 2. The respondent's counsel, Ms Hammond, submits that while pruning the 500mm or so of foliage that has grown since the applicant purchased his unit would probably not cause any damage to the tree, the respondent's position is that when the principles in Tenacity are applied there is no severe obstruction of a view from his unit and the matter should be dismissed.