Land and Environment Court New South Wales Medium Neutral Citation: Ryan v Dawson & anor [2016] NSWLEC 1613 Hearing dates: 16 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; severity; does Part 2A apply to the nominated trees Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Haindl v Daisch [2011] NSWLEC 1145 Ingram v Pettigrew [2016] NSWLEC 1002 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Reginald Ryan (Applicant) John and Karen Dawson (Respondents) Representation: Applicant: Mr Kim Ryan (Agent) Respondents: Ms Natasha Hammond (Barrister) Solicitors: Respondents: Watson & Watson Solicitors File Number(s): 306731 of 2016 Judgment 1. COMMISSIONER: Since 1962 the applicant has owned a property in Bronte, which in part, overlooks a portion of Bronte Beach to the east. The beach views are highly valued. 2. The applicant contends that trees growing on the adjoining property to the east, severely obstruct the views of the beach. As a consequence, he has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking either regular pruning of the trees or their removal in order to restore the views that were available to him before the trees were planted in 2005. 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 of these is whether the trees the subject of the application, are trees to which Part 2A applies. Section 14A(1) requires there be groups of two or more trees planted so as to form a hedge and which rise to a height of 2.5m. 5. The application claim form indicates three trees, all specimens of Aloe barberae (Tree Aloe). 6. During the on-site hearing, it became clear that there are five Aloes planted in the respondents' front garden. The lowest tree is not part of the application. The remaining trees are planted over two levels of retained garden beds – two at each level. The trees were measured to be a height of about 4.9m. The applicant's son who is acting as his father's agent stated that the fourth tree could not be seen from the relevant viewing positions as it is effectively behind one of the three nominated trees. 7. Ms Hammond for the respondents contends that the trees were not planted so as to form a hedge but were selected for their architectural form and to soften the appearance of the respondents' dwelling. She cites Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge". Ms Hammond argues that the type and arrangement of the trees, being more randomly spaced, would not give the impression of being 'planted so as to form a hedge'. 8. In the absence of a formal definition in the Trees Act, the Court has often taken a flexible approach to what it considers forms a hedge. While I generally agree that these trees would probably not be perceived as a hedge, I am prepared to put the applicant's case at its highest and consider the next jurisdictional test which is the severity of the obstruction. 9. 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 nominated viewing positions are the northeast-facing front balcony (V1) and the adjoining living room (V2). The applicant contends that the beach and ocean are obscured by the trees; the foliage being so dense as to prevent filtered views. 2. The applicant maintains that he has lost views from sitting and standing positions from both areas. Mr Ryan cites Ingram v Pettigrew [2016] NSWLEC 1002 and contends that the trees have foliage which forms a dense screen with similar properties to a solid wall rather than being canopies that are more open and allow filtered views. 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 – whether the view is of iconic structures, water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The second step considers the location from which the view is seen – across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. The third step considers the use of the rooms from which the views may be affected – views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating. 4. 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. The portion of the view in question is a valued view of the ocean, beach and surf. Overall, this is a small portion of the overall view available from the applicant's elevated and north-east facing dwelling. The majority of the view is of the residential area of the valley and ridge line of Bronte/Tamarama. 2. The views are oblique views across a side boundary. I was able to see filtered views of the surf and the beach through the foliage of the trees from standing positions on the balcony. When I sat on a chair on the balcony my view was obstructed by the applicant's Frangipani and to a certain extent by a clipped Lillypilly hedge on the respondents' property (which is not part of the application). The view of the beach is also constrained by vegetation on the property to the east of the respondents' land although that pre-dated the planting of the Aloes. From the key sitting position in the living room, the view was principally obstructed by the Lillypilly hedge. The views of the beach are generally only available from standing positions on the balcony and from a very limited number of positions in the living room, principally because of the relative location of the beach to those areas of the house. 3. In paragraph [27] in Tenacity, the former Senior Commissioner relevantly states: "…the protection of views across side boundaries is more difficult than the protection of views from front or rear boundaries….Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic." 4. 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. 5. It is agreed that the nominated viewing points are the principal areas from which the view can be seen. 6. 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. 7. Having considered the evidence as observed during the hearing, I am not satisfied that the obstruction is severe; in my opinion the impact is moderate as filtered views of the surf are available through the trees. 8. While there is no necessity to consider the balancing of interests inherent in s 14E(2)(b) I note the respondents' submission that the trees will grow to a much greater height and that any obstruction that currently exists will lessen. This is due to the growth habit of the trees which is such that the foliage is located at the very top of the tree. With the horticultural expertise I bring to the Court, I concur with this. 9. However, as I have determined that the obstruction is not severe, s 14E(2)(a)(ii) is not met, and the only orders the Court can make is that the application be dismissed. 10. The orders of the Court are: 1. The application is dismissed. __________________________ Judy Fakes Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2018