Land and Environment Court New South Wales Medium Neutral Citation: Marshall v Markovits & anor [2017] NSWLEC 1030 Hearing dates: 23 January 2017 Date of orders: 30 January 2017 Decision date: 30 January 2017 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: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Miranda Marshall (Applicant) Shmuel & Dweire Markovits (Respondents) Representation: Applicant: Mr John Comino (Solicitor) Respondents: Mr S and Mrs D Markovits (Litigants in person) Solicitors: Applicant: Comino Prassas Solicitors File Number(s): 336280 of 2016 Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the pruning of a row of Cupressus torulosa (Bhutan Cypress) growing on the respondent's property and their biennial maintenance. The orders are sought on the applicant's contention that the trees are severely obstructing views from her Bellevue Hill apartment. 2. The applicant has filed two Class 2 applications under s 14B of the Trees Act. The Markovits property adjoins the Kremnizer property, the subject of matter 336279 of 2016. These properties are downslope of, and to the northeast of, the applicant's property. The Markovits property is to the southeast of the Kremnizer property. 3. The Markovits application concerns trees 1-17. These are the eastern end of a row of Bhutan Cypress planted about 35 years ago by the neighbour, Mr Kremnizer, across the two properties on the lower side of a tennis court which has been built across the rear of the two lots. Only the Markovits property shares a common boundary with the applicant's land. 4. 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. 5. The first test, in s 14A(1) 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 and do they rise to a height of at least 2.5m? 6. While it was stated during the hearing that the intent of the planting was not necessarily to form a hedge, I am satisfied that the arrangement, spacing and general appearance of the row of trees is such that anyone viewing the trees would perceive them as forming a hedge. The trees range in height from 9-11m. Therefore the trees are trees to which the Part applies. 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 use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. 2. As Part 2A does not create a right to a view which was not available when an applicant purchased their property, it is necessary to establish the extent of the available view at that time (see McDougall v Philip [2011] NSWLEC 1280 at [19]-[25]). Views available in 2012 1. The applicant purchased her unit in June 2012. She relies on the photographs in the real estate brochure prepared for the sale of the property which are said to show the views available when she purchased her property [Exhibit B]. The photographs are alleged to have been taken in November 2015. 2. The applicant has nominated six viewing positions through six windows. Windows 1-4 are the four panels of a concertina glass door opening from the principal living area onto the adjoining balcony. The doors and balcony face northeast. Window 5 is a north-facing side living/dining room window. Window 6 is another north-facing window set back further along that façade. 3. The real estate brochure shows views from within the open plan living area from the northeast to the north; this photograph includes windows 1-4 and W5. Another photograph is taken from the glass doors across the balcony to the northeast and north. 4. The tops of the Bhutan Cypress are visible and rise above the roofs of the downslope properties. The row of Cypress on the Markovits property gently punctuates the views beyond of the eastern side of the ridge from Dover Heights, Rose Bay and Vaucluse. To the right of the frame the district views are obscured by a large Plane tree growing as a street tree. Towards the centre of the photographs is a large Cedar behind the Bhutan Cypress which towers above the horizon. This tree was growing on the Markovits property but was severely damaged in a storm and had to be removed. 5. The views available to the north are of Rose Bay, Sydney Harbour towards Manly and include Chowder Bay on the opposite foreshore and Shark Island. The trees on the Kremnizer property are shown to punctuate the southern shoreline of Rose Bay. Views at the time of the hearing 1. At the time of the hearing I observed partial views to the northeast, between the tops of the trees, of the basin to the east of the ridgeline from Rose Bay to Dover Heights and Vaucluse through windows 1-4. Parts of the horizon and top of the ridge were visible. The Markovits' trees do not obscure the water of Rose Bay. Through W5 I observed largely unobstructed views to the north of the Harbour, Shark Island, and the opposite shoreline. No part of the view through W5 is obstructed by the Markovits' trees. W6 provides very constrained and oblique views to the Harbour. This view is constrained by the adjoining building to the northwest; no part of it is constrained by the Markovits' trees. Findings – do the trees severely obstruct views from the applicant's dwelling? 1. Mr Comino, the applicant's solicitor, submits that the district views of Rose Bay and nearby suburbs are significant and important elements of the whole view that was available to the applicant when she purchased her property in 2012. For example, Mr Comino contends that the applicant can no longer see the golf course in Rose Bay or Cranbrook School. He maintains that these views are now severely obstructed by the respondents' trees. 2. Mr Markovits contends that the brochure relied upon by the applicant highlights the harbour views rather than the district views. He also submits that the obstruction is not harsh or extreme. Mr Markovits also questioned whether it was ever possible to see the golf course. Mrs Markovits stressed the obstruction caused by council-owned trees and the previous obstruction created by the Cedar. 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. 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. 5. In this matter, the views obstructed by the Markovits' trees are district views and not water or iconic views; views of Sydney Harbour are still clearly seen from the principal living area of the applicant's unit, albeit with some partial obstruction by the Kremnizer's trees. Both sitting and standing views of the Harbour are available through W5 and parts of the living room through W4. The district views directly to the northeast are available from both sitting and standing positions through W1-4, although more obstructed from sitting positions. The views are obtained from the principal living areas of the applicant's unit. 6. Having observed the trees and the views I am not satisfied that the obstruction has reached the threshold of 'severe'. In my opinion, the obstruction is moderate and the views, while pleasant, are not the most valuable or desirable views available from the applicant's property. 7. As s 14E(2)(a)(ii) is not met, the only order the Court can make is: 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: 30 January 2017