//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] NSWLEC 1252
Land and Environment Court (NSW)
2012-08-29
Mr J
Original judgment source is linked above.
Judgment 1COMMISSIONER:This application concerns a row of Cupressocyparis leylandii (Leyland Cypress) growing along the eastern boundary of a property in Turramurra. 2The applicant has made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders to remedy, restrain or prevent a severe obstruction of views from his dwelling and sunlight to windows of his dwelling. In his application, the applicant seeks orders for the pruning of the trees to a maximum height of 4.5 metres and their subsequent maintenance to that height every two to three years. During the course of the hearing, the applicant considered that a height of 5.3m for the younger elements of the hedge would be acceptable and a maximum height of 8m for the older trees. 3Amongst other things, the respondent values the trees for the privacy they afford and the green backdrop they create. While she has had some trees pruned, she is unwilling to reduce the height of the trees to the heights sought by the applicant. 4The respondent's position is that the majority of the trees do not satisfy the jurisdictional tests in s 14E(2)(a). However, if the Court finds that this section is satisfied for some trees, the respondent submits that a consideration of s 14E(2)(b) would result in no orders being made for any further interference with the trees. 5The hearing was held on site. Both parties had obtained arboricultural reports however, only the respondent's arborist, Mr Guy Paroissien, was present at the hearing. 6In applications made under Part 2A, there are a number of jurisdictional tests to be satisfied before the Court's jurisdiction to make orders is engaged.
Relevant background 7The applicant purchased her property in 1996; some of the trees were present at that time. 8In August 1999, Ku-ring-gai Council approved a SEPP 5 development containing 6 detached dwellings and 12 apartments; the applicant owns one of the apartments. According to the Statement of Environmental Effects (exhibit 3), the site was formerly occupied by a dwelling with a substantial amount of open space, some of which was used for keeping a horse. 9The applicant and his wife moved into their top floor apartment in 2002. The apartment is aligned from north to south; the lounge and family rooms, with an associated large balcony, face north. 10The respondent's property is to the west; the trees in question are located along the eastern boundary of the respondent's property. 11The land on which the applicant's dwelling is located contains a number of tall remnant trees; these are generally to the northeast of the applicant's dwelling. To the northwest are tall eucalypts and other trees growing on land other than that of the respondent.
Does Part 2A apply to the trees in contention? 12Relevant here is s 14A(1) - Application of Part. This states: (1)This Part applies only to groups of 2 or more trees that: (a)are planted (whether in the ground or otherwise) so as to form a hedge, and (b)rise to a height of at least 2.5 metres (above existing ground level). 13It is agreed there are three groups of trees. There is some discrepancy between the number of trees shown in the application and the actual number of trees in the row. The application indicates 27 trees, the respondent's arborist, Mr Paroissien, identifies 34 trees. 14Using the groups described by Mr Paroissien:
Sections 14C and 14E(1) 17Amongst other things, s 14C deals with the notice to be given to owners of affected land by anyone who applies for Court orders under Part 2A. Section 14E(1) states that the Court cannot make an order under Part 2A unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the respondent. 18On the evidence before me, I am satisfied that these tests are satisfied and I can move on to consider the substantive issues in these proceedings, that is - is there a severe obstruction to sunlight to windows of a dwelling on the applicant's land as a consequence of the trees the subject of this application and is there a severe obstruction to views from a dwelling on the applicant's land as a consequence of the trees the subject of this application.
Is there a severe obstruction of sunlight? 19Section 14E(2)(a)(i) states: (2)The Court must not make an order under this Part unless it is satisfied that: (a)the trees concerned: (i)are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, 20The applicant contends that the Leyland Cypress trees severely obstruct sunlight to eight nominated windows. The windows are summarised as:
Findings - Sunlight 29Throughout the hearing, the applicant and his wife commented on their desire for more 'light' into their dwelling. In Drewett v Best [2010] NSWLEC 1305 the Court has accepted that the word 'sunlight' used in the Act means 'direct sunlight' rather than simply 'daylight'. 30The Act uses the word 'severely'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Thus the Act sets a high bar for the level of obstruction caused by the trees the subject of the application. 31Absent shadow diagrams that might prove one way or another if the trees are severely obstructing sunlight to any or all of the windows, I must consider the layout and orientation of the applicant's dwelling and its relationship to the trees. Relevant too are things other than the trees that may contribute to any obstruction of sunlight. 32As mentioned by Mr Johnson, in previous decisions, the Court has considered the usual development standards for solar amenity/ sunlight required by most councils for new developments [Ball v Bahramali [2010] NSWLEC 1334 at [32]]. Typically these controls require at least 3 hours of sunlight to living room windows for at least 50% of their area on 22 June between 9.00 am and 3.00 pm. 33Given the northerly aspect of W6 and W8, I am not satisfied that sunlight to these windows is severely obstructed by any of the trees the subject of the application. While there will be some obstruction to W7, I am not satisfied that the obstruction is severe. 34W5 is a small south facing window and incapable of receiving direct sunlight. 35Several trees in Group C opposite W4 have been pruned to about 5.3m. The applicant agrees that this has improved the amount of light received in the dining room. The hearing was held in the morning in late August. There is no evidence to demonstrate the amount of sunlight that W4 received when the applicant moved in and, absent any shadow diagrams, what was possible on the day of the hearing. I cannot be satisfied on the evidence before me that the obstruction is severe. 36However, even if I were to find the obstruction severe, the lack of evidence is such that I could not be certain as to which trees are responsible and whether the pruning sought by the applicant would provide the necessary relief. 37Similarly for the bedroom windows, W1, W2 and W3, while it is open for me to find that the obstruction of sunlight is severe, there is no evidence to establish a quantitative basis for the balancing of interests inherent in s 14E(2)(b). On a discretionary basis, given that the windows are bedroom windows and W1 and W2 face west, they are incapable of receiving morning sun - a time when sunlight through a bedroom window may be desirable. W3 faces north and while some sunlight will be obstructed by some of the trees on the respondent's property, it is also partly obstructed by the return of the building to the north. The size of the window is relatively small and it is set below the eye height of a person of average size. In the absence of shadow diagrams, it would seem that this window would not normally receive much direct sunlight even absent the respondent's trees. 38With respect to the expert arboricultural reports obtained by the parties, Mr Paroissien is of the view that the trees in Group C that are currently around 5-6m tall are unlikely to be adversely affected by pruning to 4.5m however, pruning of taller specimens to that height would have greater impact because of the removal of large amounts of foliage and the creation of large wounds. He considers that the trees in Group B (currently about 12m tall) could only reasonably tolerate a reduction of 2-3 m - that is to a pruned height of 9-10m. Mr Paroissien stated on site that in his view, pruning to 8m would have an unacceptable impact on the trees' health. 39As mentioned earlier, the applicant obtained an arborist's report from Mr James McArdle. This report was sought after the Court's Directions Hearing. The report was allowed into evidence despite some serious shortcomings including a failure to include an acknowledgment that Mr McArdle has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, a requirement of Court Direction 14 on Expert Evidence. The McArdle report focuses almost entirely on the potential for damage or injury arising from the trees, a matter of very minor relevance to applications under Part 2A of the Act. The pruning recommendations, such as they are, are so non-specific as to be of no assistance to the Court. 40In conclusion, on the evidence before me, I am not satisfied that s 14E(2) is satisfied and therefore, the Court has no jurisdiction to make orders for the intervention with any of the trees the subject of the application in respect of sunlight. This element of the application is dismissed.
Is there a severe obstruction of views? 41Section 14E(2)(a)(ii) 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. 42The applicant nominated six viewing points:
Findings - Views 52It was clear from the on-site hearing that the orientation of the principal living areas (including the balcony) of the applicant's property is to the north. The views to the north are of dwellings on the other site of the creek through scattered remnant trees and other vegetation on the applicant's land and other nearby properties. 53The applicant maintains that when standing in certain parts of the living areas, the view to the northwest is severely obstructed by the respondent's trees. In Haindl v Daisch [2011] NSWLEC 1145 at [26] Moore SC and Hewett AC found: 26However, we are of the opinion that the words a view used in s 14 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. 54While the view to the northwest from the balcony and the lounge and family rooms is partly of the Cypress in Group A, the canopies of oaks on the respondent's property and eucalypts on other properties are also part of the view. No evidence was adduced to indicate what view the applicant had when he purchased the property. However, as stated above, the principal views are to the north and these are uninterrupted by the respondent's trees. When considered holistically, there is no severe obstruction of the views from V5 and V6 as a consequence of the respondent's trees and, as s 14E(2)(a)(ii) is not satisfied, no orders can be made for any interference with them. 55In regards to the remaining viewing points, while I find that the respondent's trees do severely obstruct views from the applicant's dwelling, I do not find that the severity and nature of the obstruction is such that the applicant's interest in having the trees pruned outweighs other matters that make such pruning undesirable or necessary. My reasons follow. 56I agree with Mr Johnson that V1 and V2 are from bedroom windows. As the Court has often referred to Tenacity, views from bedrooms are generally afforded far less weight than views from living rooms and views across side boundaries are more difficult to retain than views across front or rear boundaries. I also agree that the height of the windows is a deliberate action by the developer to limit overlooking of the respondent's property. I also find that even if the trees were pruned to the height nominated by the applicant, apart from potential damage to the trees (as discussed above), the view from V1 would be of sky and the view from V2 would still be of the conifers. 57With respect to the dining room window, the same reasoning applies although the window is full-sized. It is clear from the approved plans that a privacy screen was intended to be placed opposite this window, and despite the fact that the screen was not installed, the respondent's trees take on that screening role. The proposal in the SEE stresses the retention and reinforcement of the vegetation on the western side of the applicant's property. As with the views from the living areas, there is no evidence to illustrate the actual views the applicant contends he has lost. 58Therefore as s 14E(2)(b) is not satisfied for viewing points V1, V2 and V3, the Court has no jurisdiction to make any orders for any interference with the trees.
Conclusions and Orders 59Given the lack of evidence to support the applicant's contentions that the row of Leyland Cypress trees on the eastern boundary of the respondent's property severely obstructs sunlight to his dwelling and views from his dwelling, the Court cannot be satisfied of either the severity of the obstruction or that the applicant's interests outweigh any other relevant matters. Therefore as s 14E(2) is not satisfied, the Court has no jurisdiction under Part 2A to make any orders for any interference with any of the trees the subject of the application. 60The Orders of the Court are: (1)The application is dismissed. (2)Exhibits 2, 3, 4 and 5 are returned.
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: 07 September 2012
Bagley
Guthrie