Bramley & anor v Strata Plan No. 50371

Land and Environment Court (NSW)|2014-02-27

Judgment 1COMMISSIONER: The applicants have owned their Balmain property since 2000. At that time there was a row of Cupressus torulosa (Bhutan Cypress) growing along the rear of the respondent's property and adjoining the rear of the applicants' property. The applicants state that the trees were probably about 2.5m tall at that time. 2Since then the trees have grown considerably and the applicants contend they now severely obstruct sunlight to two windows of a secondary dwelling on their property and to two windows of the principal dwelling. They also maintain that the trees severely obstruct the district views they once enjoyed from an upstairs balcony. 3The applicants have applied under s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the trees, at the respondent's expense, and their replacement with a more suitable species. 4The respondent values the trees for privacy and screening. In the alternative, it has proposed that three small trees be removed and the remaining trees reduced by a height equivalent to a third of the height of the tallest tree. The respondent considers that this should be done at the applicants' expense. 5In applications under Part 2A of the Act, there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether the trees are planted so as to form a hedge (s 14A(1)(a)). 6According to material filed by Leichhardt Council, the trees were planted as a condition of development consent for alterations and additions to a former hotel, the respondent's property. Consent was granted in 1995. The approved landscape plan and conditions indicate that a row of either Bhutan Cypress or Port Jackson Pines were to be planted at 1.5 metre spacings along two boundary fences at the rear of the property and adjacent to the carpark. The plans also show the retention of a mature Canary Island Date Palm towards the centre of the rear fence. 7The trees vary in height with the tallest at the western end estimated at about 10m and the smallest at about 5.5 m beneath the Date Palm towards the centre of the row. 8The parties agree that the trees are planted so as to form a hedge. As the trees are in excess of 2.5m and on appropriately zoned land, s 14A is satisfied. 9The next relevant jurisdictional test is s 14E(2). This 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.

Sunlight 10The applicants have nominated four windows. Windows 1 and 2 (W1 and W2) are located on the south-western side of a small granny flat/ secondary dwelling at the rear of their property. As the tenant of that dwelling was not contactable, the windows were observed from the outside only. 11W1 is a bedroom window about 1.5m away from the dividing fence between the parties' properties and the trees in question. W1 is less than 1m from the fence dividing the applicants' property from the adjoining property to the southwest. The bottom of the sill is approximately level with the top of that dividing fence. 12W2 is the window of a kitchen/ dining area, a couple of metres to the south of W1. The bottom sill is about level with the top rail of the fence. 13Windows 3 and 4 are on the north-western side of the ground floor of the principal dwelling. W3 and W4 are French doors that open onto an elevated deck that constitutes the applicants' private open space at the rear of their dwelling. W3 opens from the dining room and W4 opens from the living room. W3 is approximately 3.5m from the rear of the granny flat; W4 is to the east and set back a further 2.5m. 14The applicants contend that there is no sunlight to W1 and W2 at any time and that sunlight to W3 and W4 is restricted from late autumn to early spring. 15As the applicants did not provide any shadow diagrams, the severity of any obstruction of sunlight to these windows as a consequence of the trees to which this Part applies must be deduced from the features of the site. 16Given the proximity of W1 and W2 to the trees, I am satisfied that some sunlight to these windows is severely obstructed as a consequence of some of the Bhutan Cypress growing on the respondent's property. While some obstruction of sunlight to W3 and W4 by these trees is also likely, I am not satisfied on the evidence before me that the obstruction is severe, however, I have considered these windows in paragraph [27]. 17While s 14E(2)(a)(i) is satisfied for W1 and W2, before determining if any orders for intervention with the trees is warranted, I must consider s 14(2)(b) and whether the applicants' interests in having the obstruction remedied outweighs any other relevant consideration. This requires consideration of a number of discretionary matters in s 14F. The relevant matters are considered below. 18The trees are planted in a raised garden bed and are very close to the dividing fence that separates the applicants' property and adjoining property to the southwest from the rear of the respondent's car parking area (s 14F(a)). 19The trees were planted after the construction of the granny flat but before the applicants' purchased their property (s 14F(b)). 20As stated above, the trees were planted as a condition of development consent. While the reasons for the condition were not stated in the approval, it is not uncommon for such plantings to be required for screening and privacy purposes. The respondent's property is a two storey former hotel converted into studio apartments and commercial premises. The surrounding development is mostly one and two storey residential dwellings on small lots (s 14F(e)). 21The trees contribute to the natural landscape and scenic value of the land on which they are growing; as the trees can be seen from adjoining and nearby properties, they also have some value to public amenity. The respondent maintains that the trees contribute to the privacy of the limited areas of communal open space, including an elevated deck at the rear of the building, as well as providing visual amenity by screening adjoining properties and structures (s 14F(h)(i)(l)). 22Neither party engaged an arborist to provide independent expert evidence on site. The respondent stated that the Strata had sought some arboricultural advice in regards to pruning and were advised that the trees would only tolerate a reduction of up to 30%. With the arboricultural expertise I bring to the Court, I concur with this assessment. In my view, removing any more foliage would detrimentally impact on the health and appearance of the trees. The trees are currently healthy. Should any further reduction be required, the most appropriate course of action would be to remove the trees (s 14F(k)). 23Probably of most importance is consideration of things other than the respondent's trees that are likely to contribute to the obstruction of sunlight to all of the nominated windows (s 14F(m)). 24In regards to W1, this window is very close to the corner of the applicants' property. The northern wall of the granny flat is very close to the dividing fence. Apart from the Bhutan Cypress trees, the retained and established Canary Island Date Palm is close to this window and partly overhangs that portion of the granny flat. On the adjoining property to the southwest, there are a number of trees and shrubs that would also cast some shade. However, in my opinion, the principal reason why this window would receive little sunlight is its south-westerly aspect. This window would only be capable of receiving late afternoon sun at any time of the year but in particular in winter. The presence of other vegetation on other properties would also interfere with the afternoon sun. 25I also note that this is a bedroom window and therefore of lower priority than a window of a living area. The windows of the main living areas of the secondary dwelling face northeast and are not in contention. 26In regards to W2, this window is further away from the corner of the property but the lower portion is partly obstructed by the dividing fence. It has the same aspect of W1 and is therefore similarly affected. 27Turning to W3 and W4, the absence of shadow diagrams makes it very difficult to determine the effect of the Bhutan Cypress trees on these windows. I am satisfied the trees would cause some obstruction however, so too would the Date Palm and other tall trees to the northeast. There would also be some shading as a consequence of the granny flat and the self-shading of W4 by the projection of the dining room. As stated above, I am not satisfied on the evidence that the obstruction due to the Bhutan Cypress is severe. 28Returning to W1 and W2 and the balancing of interests in s 14E(2)(b), given the other obstructions to sunlight to these windows I am not satisfied that the removal of the trees is warranted. The respondent has suggested pruning the trees by 30% and removing the three smallest trees as a possible means of alleviating the obstruction. While this option may increase sunlight to these windows, the absence of shadow diagrams to verify the benefit this may bring makes it difficult to make an order for an intervention with the trees. Although the removal of the smaller trees may increase ambient light, the removal is unlikely to have any significant impact on direct sunlight given the nearby trees including the Date Palm. 29Therefore, on balance, I do not find s 14E(2) satisfied in the applicants' favour, and the Court's jurisdiction to make orders is not engaged.

Views 30The applicants contend that when they purchased their property they had pleasant district views of Balmain Town Hall to the west and the ridgeline of Birchgrove to the north. They maintain that the respondent's trees severely obstruct those views. 31In considering view issues, the Court has often referred to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. Three of the four steps in this principle are useful. 32The first step is an assessment of the affected views. Generally views of iconic structures (such as the Opera House) are valued most highly, and water views are valued more highly than land views and district views. 33The second step is to consider from what part of the property the views are obtained. Protecting views across side boundaries is more difficult than protecting views from front and rear boundaries. 34The third step is to assess the extent of the impact from the whole of the property. The impact on views from living areas is more significant than views from bedrooms or service areas. The impact may be assessed quantitatively or, more usefully, qualitatively as negligible, minor, moderate, severe, or devastating. 35In considering the applicants' contentions, the view is a district view to the distant ridgeline of residential dwellings and much vegetation in between. Apart from the respondent's trees, the tops of which punctuate that view, there are many other nearby trees in other properties that similarly obscure and punctuate the more distant views of the ridgeline. The view to the Town Hall is across many side boundaries. The ridgeline is visible through the tops of the trees. 36The area from the view is seen is a small deck on the first floor off the staircase leading to an upstairs bedroom. The main living area is downstairs and any views from the living areas are limited by surrounding buildings, including the granny flat. 37Overall, I consider the impact of the respondent's trees to be moderate and not severe. As s 14E(2)(a)(ii) is not satisfied, the Court has no jurisdiction to consider s 14E(2)(b), however, even if I am wrong in this finding of severity, given the findings in [35] and [36], as a matter of discretion, no orders would be made for the removal of the trees as sought by the applicants.

Conclusions and orders 38After considering the evidence and the circumstances of the matter, no orders will be made for any intervention with the trees at this stage. However, should the circumstances change, as considered in Devile & anor v Frith & anor [2014] NSWLEC 1002, it is possible for the applicants to make a further application. 39Therefore, the Orders of the Court are: (1)The application is dismissed.

Judy 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: 05 March 2014

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