Fortescue & anor v Knarf Holdings Pty Ltd [2016] NSWLEC 1605

Land and Environment Court New South Wales

Medium Neutral Citation: Fortescue & anor v Knarf Holdings Pty Ltd [2016] NSWLEC 1605 Hearing dates: 12 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views, obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Neville and Lisle Fortescue (Applicants) Knarf Holdings Pty Ltd (Respondent) Representation: Applicants: Mr John Fortescue (Agent) Respondent: Mr Christopher Gough (Solicitor)

Solicitors: Respondent: Storey & Gough File Number(s): 255665 of 2016

Judgment 1. COMMISSIONER: In October 2000 the applicants occupied their newly constructed unit in Manly; the unit had been purchased off the plan in 1998. At that time, the applicant's property was a multi-storey pre-existing mixed use development on South Steyne, between the applicants' unit and Manly Beach. A photograph taken pre the re-development of the respondent's property show that building to have a flat roof with an exhaust fan or other plant on one corner. The photograph shows that the building obscured a portion of the view of the beach and surf zone from the applicants' property. 2. In 2001, Manly Council granted development consent for alterations and additions to the respondent's property. This consent was modified in 2003. Relevant to this tree matter, the approved plans for the development included the construction of a number of planter boxes on the roof top as well as a structure incorporating the lift over-run and plant room. There are no conditions of consent relating to the type of plants to be used or the height to which they should be maintained. According to the respondent, the planter boxes were included to soften the impact of the roof area on adjoining properties. 3. The applicants contend that the plants growing in the planter boxes severely obstruct views from their dwelling. Consequently they have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the trees from the planter boxes and their replacement with ground covers. 4. The application is made in regards to 9 trees – all the same cultivar of Lillypilly and all in planter boxes along the western edge of the roof top. These comprise six trees in a planter to the south of the lift/ plant room structure, and three (trees 7-9) in a planter to the north of the lift structure. There are other planter boxes along the southern and northern edges, which are not subject to this application. 5. In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied in order to engage the Court's powers to make orders under s 14D. 6. The first of these is whether the trees, the subject of the application, are trees to which the Part applies. Section 14A(1) states that the Part applies only to groups of two or more trees planted so as to form a hedge, whether in the ground or otherwise, and which rise to a height of at least 2.5m above existing ground level. 7. The trees in the planter boxes are less than 1.5m tall when measured above the top of the planter mix in which they are growing. The trees are less than 2.4m when measured above the height of the roof. However, as the trees are on a roof terrace of a multi-storey building, they rise to a height of at least 2.5m above natural ground level. The spacing, species choice and clipped shape demonstrate that the trees are planted so as to form a hedge and have been maintained as such. As a result, the trees the subjects of the application are trees to which the Part applies. 8. 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 applicants have nominated seven viewing points throughout their apartment. Viewing point 1 (V1) is the view directly to the east from the entry hallway, V2 is to the east from the kitchen located in the central/rear portion of the unit, V3 Is the view to the east from the centrally located dining area, V4 sitting and standing views from the living room, V5 from the southernmost room, the main bedroom, V6 from the study/spare bedroom, and V7 from the northernmost room, another bedroom. Rooms 4-7 adjoin an east-facing balcony that stretches the length of the unit. 2. The view in contention would appear to be that portion of the view of the water and horizon that was initially available above the roof of the respondent's property, pre-development, and which is not obstructed by the lift/plant room structure. 3. During the on-site hearing I made the following observations of the views available from the nominated viewing positions. * V1 – partial view of horizon and ocean; * V2 – partial view of the ocean and horizon across intervening rooftops; * V3 – minor obstructions of water/horizon either side of the lift structure, otherwise unobstructed views to the north and south (as limited by the location of the dining table); * V4 – some views through the lower parts of trees 1-6 of the ocean; sitting and standing views to the north up to Queenscliff including beach, surf zone, Freshwater; views to south of ocean/beach through Norfolk Island Pines; * V5 – sitting and standing views as for V4 but less obstructed by the nominated trees'; least affected of all viewing points; * V6 – sitting on the sofa, clear view to Queenscliff and distant views of coastline up to Long Reef; main obstruction when looking due east; views to the south generally unaffected; * V7 – room most affected but standing views to the north available; standing and sitting views to the south are generally obstructed by the original portion of the respondent's building but some limited beach views available. 1. The applicants submit that the trees serve no real purpose and that the intent of the planting could be achieved by using ground covers/ low growing species which do not unnecessarily impact on views from their dwelling. 2. The respondent's position is that the planters were imposed as a condition of consent in order to soften the building and the trees have been planted and maintained in accordance with the development consent. The respondent contends that the lift overrun causes the greatest obstruction and when that structure, and other structures such as exhaust fans are taken out, the extent of any obstruction by the plants either side of the lift is minor. Overall, the respondent's position is that the view loss as a consequence of the trees is negligible to minor. 3. 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 scale of impact ranging from negligible, to minor, moderate, severe to devastating. 4. The photographs in the application claim form tend to confine the extent of the view available from any of the viewing points to views towards the east rather than including views to the north and south. In Haindl v Daisch [2011] NSWLEC 1145 the Court considered the nature of 'a view'. 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. While I accept that the obstructed part of the view is a water view and therefore generally valued more highly than views of land, and the views are partly obscured across the front boundary from sitting and standing positions in main living areas, given the extent of the view still available to the applicants, I must concur with the respondent in that I find the obstruction as a consequence of the trees is minor at most and well below the threshold of 'severe' required by s 14E(2)(a)(ii). 2. As a consequence of this subsection not being satisfied, the Court has no jurisdiction to consider the matter further. 3. Therefore the Orders of the Court are: 1. The application is dismissed. _________________________ Judy Fakes Acting Commissioner of the Court