Beath & Anor v Whyman

8The figures for 21 May are similar but with slightly less impact on windows 4 and 5. 9The applicants purchased their property in 1998 and contend that the trees were not present at that time. The first respondent stated that the trees have been there for at least 11 years and replaced some fig trees. The respondents have owned their property for 22 years. 10The applicants' contend that their property has been designed to take advantage of winter sun but that wide eaves shade the living area in summer. About 2 years ago, the applicants constructed a masonry wall around the terrace that adjoins the lounge room. From the pedestrian right of way, the top of that wall ranges in height above ground level from 2.97m at the western end to 3.72m at the eastern end (the land slopes to the east). From within the applicants' terrace, the wall height (while not measured) is estimated to be at least 1.5m in most sections. 11We note that the applicants' kitchen/ dining area has a high ceiling with windows and skylights that are not obstructed by the trees. We also note a tree on the applicants' land outside window 8 that would obscure some sunlight through it. 12The first respondent's position is that whilst she would agree to some pruning of trees 1-3, she does not agree to any pruning of the four trees to the west of the side gate. She contends that the trees were planted to provide privacy to her dwelling, in particular the pool and associated courtyard, a covered entertaining area above the pool, a terrace off the main bedroom, and most especially, the bathroom off the main bedroom. The main bedroom is located on the top floor. The bathroom window overlooks the applicants' dwelling. The first respondent contends that the bathroom and bedroom terrace can be seen from the applicants' top floor main bedroom and from unit blocks across a laneway to the south/ southeast of the applicants' property. 13At the hearing, all of the windows and viewing points raised by both parties were inspected. We note that the view from the laneway to the respondents' top floor is mostly obscured by the applicants' dwelling and the dwelling to the east and that the view line is quite narrow. In regards to the privacy issues relating to the respondents' main bedroom/bathroom, we agree that at least trees 6 and 7 provide privacy to the bathroom, however the bedroom terrace is clearly visible from properties to the east. Even with some pruning, we consider that the trees would provide adequate privacy to the respondents' courtyard near the pool and the downstairs terrace. Any potential overlooking would be from the applicants' main bedroom and not from the main living areas.

The assessment framework 14Section 14A(1) provides: 14A Application of Part (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). 15Section 14B provides: 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, 16Section 14D(1) provides: 14D Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of: (a) sunlight to a window of a dwelling situated on the applicant's land, 17Section 14E(2) provides: . (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, 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. 18Section 14F provides for the matters to be considered by the Court before determining an application.

Findings 19On the evidence before us we are satisfied that the trees meet the jurisdictional tests in s 14A. Whilst there is a gate between trees 3and 4, we consider that for practical reasons, the trees should be considered as one hedge. 20We are satisfied that trees 1-5 do severely obstruct sunlight to windows 3-6 in winter and to windows 4-6 in late autumn and early spring. The shadow diagrams do not convince us that the trees severely obstruct sunlight to windows 7 and 8 but accept that the trees do obstruct some sunlight. 21As s 14E(2)(i) is satisfied for some of the windows, we must consider s 14E(2)(b) and determine whether the applicants' interests 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. This requires consideration of the discretionary matters in s 14F. 22Of relevance in this matter are the following clauses: (a)The trees are wholly located on the respondents' property and are on land adjoining the applicants' land. (b)The trees were planted after the construction of the applicants' dwelling. (c)The trees have grown to their present height (7-8m) in the time that the applicants have owned and occupied their property. (h) The trees contribute to the scenic value of the land on which they are growing and provide softening and screening of the built form. (k) Leyland Cypress are relatively tolerant of pruning. The trees are at a size where the impact of pruning will not be especially detrimental to their health or form. (l)The trees do contribute to the respondents' privacy - see [12] and [13] above. (m) We concur with the consultants who prepared the shadow diagrams that the respondents' dwelling limits afternoon sunlight, in particular to windows 7 and 8. Some sunlight may be blocked by two Cocos Palms growing in the respondents' rear garden however, this effect will decrease as the palms grow taller. (o) The loss of sunlight occurs in the month or so before, during and after winter. (p) The trees are evergreen. (r) The loss of sunlight is to the living area of the applicants' dwelling. (s) We note that on the applicants' property there is a relatively narrow area available for the penetration of winter sun. We accept that the eaves are designed to provide summer shade but observe that, in the absence of the trees, the height of the applicants' wall would cause some obstruction of winter sun. However, we note that the trees are the major cause of the loss of sunlight. 23Taking into account the positions of both parties, we consider that some pruning of trees 1-5 is appropriate, these being in sequence as illustrated in the applicants' plan (i.e. from east to west). We accept that trees 6 and 7 provide privacy to the upper level of the respondents' dwelling and do not sufficiently obstruct sunlight from the applicants' dwelling to warrant an order for pruning. 24Given that the loss of sunlight just before and after winter is at issue, we consider that the most appropriate time of the year to order pruning is within the first 3 weeks of April each year. We anticipate that the trees will grow back relatively slowly though the winter months and any impact on sunlight during the summer months is not important because of the eaves on the applicant's dwelling. We anticipate that as the trees grow through the spring, the regrowth will provide privacy through the warmer months when the pool is likely to be used more frequently. 25The height to which the trees are to be taken is 4.2m (+/- 100mm) above the level of the paved right of way. The line of the pruning is to follow the level of the paving. 26Therefore as a consequence of the forgoing, the orders of the Court are: (1)The application to prune the trees is upheld in part. (2)The respondents are to engage and pay for an AQF level 3 arborist or horticulturalist to prune trees 1-5 to a height of 4.2m (+/- 100 mm) above the height of the paved pathway. (3)The first pruning is to occur between 1 and 21 April 2012 and subsequently on an annual basis between those dates.

J Fakes Commissioner of the Court

P Hewett 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: 20 September 2011

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