McKenzie v Selwood & anor [2017] NSWLEC 1031

Land and Environment Court New South Wales

Medium Neutral Citation: McKenzie v Selwood & anor [2017] NSWLEC 1031 Hearing dates: 25 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; views from the whole of the property. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali [2010] NSWLEC 1334 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Pamela McKenzie (Applicant) Diana and Greg Selwood (Respondents) Representation: Applicant: Ms M McKenzie (Agent) Respondents: Mr C Shaw (Solicitor)

Solicitors: Respondents: Shaw Reynolds Lawyers File Number(s): 312096 of 2016

Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a row of trees growing on the respondents' property. The orders are sought on the basis that the trees severely obstruct views of the Georges River from her Sylvania dwelling. 2. The respondents value the trees for privacy. The trees were planted in about 2012 in accordance with approved plans and conditions associated with the construction of the respondents' dwelling. Sutherland Shire Council granted development consent in 2008. 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) 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 are they at least 2.5m tall? 5. The trees are a row of Lillypillies planted at the rear of the respondents' property along the base of a retaining wall which forms the northern boundary of the applicant's property. The trees have been planted and maintained as a hedge. At the time of the hearing the trees were approximately 4m tall. Therefore, the trees are trees to which Part 2A applies. 6. 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 five viewing locations on the ground level of her two storey dwelling. The views are from north-facing windows and terraces. The views to the north are across the Georges River to Bald Face Reserve, Blakehurst and Kyle Bay, and to the northwest to Kangaroo Point. The viewing locations are: * V1 – sitting and standing views from the kitchen/dining area and associated terrace; * V2 & V3 – sitting and standing views from the formal living room; * V4 – sitting and standing views from the dining room; * V5 – sitting and standing views from the living area of an attached flat. 1. The applicant purchased her property in 1963 and carried out extensions in 1983. The applicant contends that before the trees were planted, the view of the Georges River and associated boat traffic was unobstructed. In further submissions, the applicant contends that maintaining the hedge at a lower height, or removing and replacing the trees with a smaller species to 2.5m, would not compromise the respondents' privacy as there is no direct overlooking of any habitable room from the applicant's property; the area is a driveway leading to a garage and front door. The applicant maintains that in their current state, the trees effectively form a solid green wall 2. The respondents' position is that prior to the construction of their new dwelling, there were a number of trees on the site that obstructed views from the applicant's property. They also contend that the trees were conditioned by council in order to improve the visual amenity from the applicant's property as a consequence of the construction of their garage and that this action was in response to submissions made by the applicant against their development application. They assert that the trees are shown on the approved plans as being 3-4m high and that the trees have been regularly maintained at 4m or approximately 1.2m above the top of the applicant's paved terrace. 3. During the on-site hearing I made the following observations. From a standing position from all viewing points the river and opposite shoreline can be seen. The southern shoreline is obscured by downslope dwellings, including the respondents' dwelling. A portion of the river view is obscured by the hedge. 4. From a sitting position in V1 there is a partial view through a gap in the vegetation of the river and the opposite shoreline. 5. Sitting views from the formal lounge area (V2-V3) and completely obscured. 6. In the dining room (V4), sitting views to the north are completely obstructed however there are partial views to the northwest. 7. There is only a minor obstruction of the view from V5 from both sitting and standing positions. 8. As it is important to assess the views available from the whole of the property, the views from the first floor living room and terrace were noted. From this level the expansive views, from both sitting and standing positions, are unobstructed by the plants the subject of the application.