Bako v Aldred & anor [2012] NSWLEC 1216

Land and Environment Court New South Wales

Medium Neutral Citation: Bako v Aldred & anor [2012] NSWLEC 1216 Hearing dates: 1 August 2012 Decision date: 01 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; impact on views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Ball v Bahramali [2010] NSWLEC 1334 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Ms Sophia Bako (Applicant) Mrs Pamela Aldred and Mr Michael Aldred (Respondents) Representation: Applicant: Mr Robert White Respondents: Mr Scott Nash Respondents: Jenkins + Associates File Number(s): 20210 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Vaucluse against the owners of trees growing on an adjoining property. 2The applicant is seeking orders for the trimming of four trees to a height not exceeding the bottom of the deck at the rear of the applicant's property and their subsequent maintenance at that height. 3The orders are sought in order to remedy, restrain or prevent a severe obstruction of a view from a dwelling. 4The respondents do not wish the trees to be pruned, as they are concerned about impacts on tree health as well as a loss of privacy. 5The trees subject to the application are four of many trees growing at the rear of the respondents' property. Tree 1 is a Privet, Tree 2 is an Italian Cypress, Tree 3 is a Norfolk Island Pine and Tree 4 is a Native Daphne. All trees show signs of previous lopping and subsequent regrowth. 6It was agreed that the trees meet the jurisdictional test in s 14A in that there are two or more trees, planted so as to form a hedge, which rise to a height of at least 2.5 m and are on appropriately zoned land. 7The applicant purchased her property about three years ago and contends that at that time she and her family enjoyed uninterrupted panoramic views across the harbour to Georges Heights, Middle Head and Manly. She states that in the time she has owned the property, the trees have grown and now obstruct views from the outdoor entertainment area/ pool deck, associated seating areas, the barbecue and from within the dining room. In her application claim form the applicant describes the nature and extent of each affected view as a "partial obstruction".

Observations 8The hearing was held on site and commenced with an inspection of the nominated viewing points. 9The trees in question are located forward of the western end of the extensive deck. When standing close to the balustrade on the northern edge I noted: some, but only minor, obstruction of water views by Tree 1; a window of view between Trees 1 and 2; a more severe obstruction by Tree 2; filtered views through Tree 3; and only a negligible impact on the view by Tree 4. 10From further back from the edge the view became generally less obstructed, including by an Angophora growing on the applicant's property. From the eastern side of the deck there are unobstructed views to Manly. 11From within the dining room, the principal view to Manly is unobstructed and there is also only a partial obstruction of views to the west from some sitting positions. 12I noted that while not in contention, the views from the living room are generally unobstructed.

The assessment framework 13In applications under Part 2A, a key jurisdictional test is s 14E(2)(a)(ii) which states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land. 14The sequence of decision-making gateways is discussed in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122. 15The meaning of the word 'severe' has been discussed in a number of judgments including Ball v Bahramali [2010] NSWLEC 1334. In essence, the word 'severe' sets a high bar. In Haindl v Daisch [2011] NSWLEC 1145 at [26] the concept of ' a view' is covered - that it is the totality of a view and not some limited slice of it.

Submissions 16In submissions both advocates raised the assessment principles in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The only common ground was that the view is of water and therefore more highly valued than a view of the land. The key issue remains as to whether the obstruction is severe. 17Mr White for the applicant contends that the applicant's extensive use of the outdoor entertainment area and the configuration of the dwelling mean that the impact of the trees is severe. Essentially, the deck and surrounds are the focus of family living. He pointed to the difference between the uninterrupted views to the east and compared them to the obstructed views to the west. It is the applicant's submission that the obstruction is severe. 18Mr Nash for the respondents submits that when one walks onto the deck one sees an expansive and panoramic view interspersed with branches. He also reminded the Court of the applicant's written claim form that describes the impact as 'partial'. It is his contention that when viewed as a whole, the impact of the trees on the view is not severe.

Findings and orders 19On the basis of my observations made on site, I do not find the obstruction caused by any of the trees to be severe. I agree with the applicant's own assessment that the obstruction of views is 'partial'. As I noted previously, there are filtered views through the trees - particularly Tree 2 and Tree 3, and Trees 1 and 4 have virtually no impact on the views. When considered more holistically and from the entirety of the available space there are large expanses of harbour views. 20While I accept that in the period since the applicant purchased her property the trees have grown and have partly obscured the view, the obstruction is not severe and therefore the Court's jurisdiction to make any orders for any interference with the trees is not engaged. 21Given this finding, while the parties sought expert reports from arborists and Mr Peter Castor the applicant's arborist was present to assist the Court, the issue of pruning cannot be a matter for me to determine. 22Therefore the Orders of the Court are: (1)The application is dismissed. ______________________ J Fakes 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: 08 August 2012