Solomon v Shagrin & anor [2016] NSWLEC 1587

Land and Environment Court New South Wales

Medium Neutral Citation: Solomon v Shagrin & anor [2016] NSWLEC 1587 Hearing dates: 7 December 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; trees to which the Part applies; obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Mr Ezekiel Solomon (Applicant) Mrs Anne & Mr Bernie Shagrin (Respondents) Representation: Applicant: Mr E Solomon (Litigant in person) Respondents: Ms J Kanevsky (Agent) with Mrs A Shagrin (Litigant in person) File Number(s): 278284 of 2016

Judgment 1. COMMISSIONER: The applicant owns a property in Dover Heights. He has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to 4m and the subsequent maintenance of five trees growing on the respondents' property. The orders are sought on the applicant's contention that the trees severely obstruct views from his dwelling. 2. The respondents' property is to the north-west of the applicant's property; the parties share part of a common rear boundary. 3. The respondents resist this request as they value the privacy the trees afford their dwelling and pool. In particular, they contend that the trees block direct views from the applicant's upper storey balcony of the respondents' backyard. 4. In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. Section14B 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 or of sunlight to windows of a dwelling on the applicant's land, however the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 5. Section 14A(1) describes the trees to which Part 2A applies; it states: (1) This Part only applies 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). 1. The application concerns 13 trees. Trees 1-9 are mixed species growing along the fence at the rear (eastern boundary) of the respondents' property – T1 is a Pittosporum, T2 is an Umbrella Tree, T3 (and possibly T5) is unidentified in the application claim form but is a rambling Tecomaria capense (Cape Honeysuckle); T 4 and 6 are two Cocos Palms which have had their crowns removed and remain as two large trunks; and T 7 and 9 are two Agonis flexuosa. The only tree in this row in contention is T2. According to the first respondent, the trees were planted in 1981-82 after the construction of their swimming pool (not after 2007 as suggested by the applicant in the application claim form). The planting of the trees was conditioned by Waverley Council. 2. In putting the applicant's case at its highest, while the mixture of species is diverse, given the close spacing of the trees, the fact they were planted in one event, and in the absence of a formal definition of a "hedge" in the Trees Act and the Court's flexible interpretation of the meaning, I am prepared to accept that Part 2A applies to trees 1-9. 3. Tree 10 is a Cocos Palm growing in the respondents' front garden. While it is in a narrow garden bed with other smaller shrubs, it has no distinct relationship with them and is effectively a single tree. Thus it is not a tree to which the Part applies and the Court has no jurisdiction to consider it. 4. Trees 11 and 13 are two of three Cocos palms growing along the respondents' southern boundary fence at the rear of their property. The third Cocos Palm is smaller than the others and is probably not visible from the applicant's property. The application claim form notes an unidentified species as T12. During the on-site inspection this was identified as a Celtis sp. The respondent stated that the Cocos Palms were planted at the direction of Council as a condition of the removal from the respondents' property of a large and mature Norfolk Island Pine. As I understand it, the removal of this tree came about as a result of a complaint by the applicant about damage being caused by the tree to his property. A copy of the tree removal permit issued by Waverley Council on 30 April 2007 is included in Exhibit 1. 5. According to the first respondent, the Celtis was not planted but seemed to appear by itself. With the horticultural expertise I bring to the Court, and in concurrence with the opinion of Council's Tree Management Officer Mr Malcolm Coote who attended the hearing, this is a species commonly spread by birds. That is, T12 is 'self-seeded' and not 'planted'. In Johnson v Angus [2012] NSWLEC 192 at paragraphs [12] – [18] Preston CJ discusses the use of the word 'planted' and finds that a self-sown tree cannot be planted. Therefore this tree is not a tree to which Part 2A applies and is thus beyond the jurisdiction of the Court. 6. Notwithstanding the finding on the Celtis, I accept that the two Cocos Palms planted in 2007 are planted close enough to be a 'hedge' albeit an unconventional hedge. 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. The applicant has nominated three viewing positions on the upper storey of his dwelling. Viewing point 1 (V1) is a standing position in the centre of the master bedroom, V2 is from the centre of the adjoining elevated terrace, and V3 is shown as probably a seated position from the far side of a 'lounging area' in the bedroom. 2. The view in contention, as described in the application claim form on p7, spans the City [CBD], Opera House, Harbour Bridge, Southeast/northeast harbour water expanse and North Sydney through to the Chatswood CBD. The applicant states that the view from V1 and V2 is now obstructed to the extent they can now only see the Opera House, the southern pylons of the Harbour Bridge, very little of the Bridge itself and hardly any water of the harbour or the North Sydney foreshore. He also states that from V3, the view is so obstructed that all that can be seen is a part of the City CBD and a slightly obstructed view of the Opera House. In submissions, the applicant made it clear that his position remained that the view he alleges was available to him in 1978, when he purchased his property and constructed the terrace, should be available to anyone standing in any part of the bedroom or terrace. 3. Photograph 1 on p6 of the application claim form, taken from a point near the south-western corner of the terrace shows the full extent of the view the applicant states was available in 1978. The respondents question the availability of the view at that time, given the fact that the Norfolk Island Pine would have been of considerable size and would most likely have obscured part of the contested view. 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 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 qualitative 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. The view in question includes the iconic structures of the Opera House and Harbour Bridge and some partial water views. 6. During the on-site hearing, the view was observed from all of the specifically nominated viewing positions and from other positions in the bedroom and the terrace. As evidenced by Photograph 1, it is still possible to see most of the view in contention from part of the terrace. The distant view has a foreground of roof tops. The Opera House can be seen from most viewing points as can much of the Harbour Bridge. The main obstruction arises from T2 which blocks a triangular portion of the view of North Sydney and its harbour foreshore framed by the roofs of the respondents' dwelling and the adjoining dwelling to the north, from some parts of the bedroom and terrace. The fronds of the two Cocos Palms, T11 and 13, partially obscure/filter part of the City CBD from some parts of the terrace and bedroom. Tree 10 also obscures part of the span of the Bridge from some parts of the terrace; however, as stated above, this tree is beyond the Court's jurisdiction. 7. 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 (presumably) sitting and standing positions. In paragraph [27] in Tenacity, the former Senior Commissioner relevantly states: "Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic." 8. 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. 9. In relation to this matter, the views are from a first floor terrace and the adjoining the main bedroom. Although it appears that the terrace was constructed specifically to take advantage of the views, there was no evidence to suggest that it is a principal living area. Access to the terrace is through the bedroom or via a narrow spiral staircase. Whilst I accept that some parts of the view are obstructed more than other parts and from specific viewing points, I find that the overall obstruction is not severe but moderate at most. 10. 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. The Act does not set any benchmark which requires that a view originally available when an applicant purchased their land to be fully maintained for the duration of an applicant's ownership of that land. 11. Also relevant to this decision, 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. Therefore having considered the evidence in the application claim form and with the benefit of the site inspection, I find that s 14E(2)(a)(ii) is not met and therefore the Court has no jurisdiction to consider the matter any further and, as a consequence, the Orders of the Court are: 1. The application is dismissed. _____________________ Judy Fakes Acting Commissioner of the Court