Brown v Davey

Land and Environment Court (NSW)|2021-07-22|Before: Centre J

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

Mr Brown, the applicant, and Mr Davey, the respondent, share a side boundary between their properties in Fountaindale, in the Wyong LGA. Mr Brown occupied his property in 1999, and built his dwelling in 2000. Mr Davey occupied in 2019.
In about 2010, a row of 43 x Cupressocyparis leylandii (Leyland Cypress) were planted in the respondent's property, parallel with, and adjacent to, the common boundary. They run eastward for about 35 metres from the respondent's south-western corner. In 2015, an additional 30 Leyland Cypress trees were planted, extending the hedge along the entire boundary, which measures almost 74 metres.
Over the intervening years the trees have grown larger and taller, until the applicant now says that some of the north facing windows of his dwelling receive significantly less sunlight, particularly in winter. Mr Brown has submitted an application with the Land and Environment Court ("LEC"), pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act"), seeking orders for the hedge to be pruned, such that it is less than five metres high, as at the beginning of each calendar year.
The application included a copy of a letter, dated 3 March 2021, from a Community Justice Centre ("CJC") Director, advising that the respondent had declined the applicant's attempt to engage in mediation.

Framework

The Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views from, or, of sunlight to a window of, the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Hearing: observations and submissions

Due to current COVID-19 restrictions, the hearing took place via Microsoft Teams, under the Court's COVID-19 Policy. Relying on extensive real-time video evidence provided by the applicant, the parties' affidavits, and submissions presented during the hearing, I was able to make this decision without requiring a subsequent site view. At the conclusion of the hearing, both parties expressed satisfaction that relevant evidence had been appropriately considered, notwithstanding the absence of a site visit. I bring my own arboricultural expertise to the matter.
The trees are growing in an uninterrupted row. They were planted at close and regular spacings. Viewed from the applicant's property, the initial 2010 planting to the north and north-west are deemed to be eight to ten metres tall, while those planted to the north and north-east are about five metres tall. They are healthy trees that are growing vigorously and, without regular intervention, are likely to grow much taller.
Mr Davey disputes that the trees severely obstruct the sun. He is concerned about overviewing of his property from the applicant's windows, and he values the trees for the privacy they provide. Mr Davey contended that a height of at least six metres is required for effective screening. He also claimed that the trees provide protection from southerly winds, add to the natural landscape and scenic value of the area, and enhance an 'environmental' atmosphere for his property.

Jurisdictional requirements

Prior to this hearing, a Notice of Motion, lodged with the LEC by the respondent, was heard by Justice Pain. The respondent claimed that the jurisdiction of the Trees Act did not cover the E4 Environmental Living zoning which applies to both parties' properties, under the Wyong Local Environment Plan 2013. Justice Pain found that the jurisdiction of the Trees Act does apply to this zoning, and dismissed the respondent's application.
In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
Section 14A(1) states: 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).
The trees were planted in a row, so as to form a hedge, and the jurisdiction of the Trees Act allows for staged plantings. They exceed 2.5 metres in height, and therefore s 14A(1) is satisfied.
Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. Mr Brown attempted to organise mediation with Mr Davey through a CJC but was unsuccessful. This is sufficient to be considered a reasonable effort to reach agreement, thus s 14E(1)(a) is also satisfied.
The next step is to assess the severity of the obstruction of sunlight to the applicants' dwelling, as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (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.
The applicant's property is to the south of the respondent's, and his dwelling is set back about 12 metres from the common boundary. The house is two-storey, and there are windows along both levels on the northern side. Upstairs are the kitchen (W1), bathroom (W2) and main bedroom (W3) windows. The kitchen also has windows facing west towards a roof covered veranda, and the main bedroom also has doors and windows facing a covered veranda to the east. Downstairs are laundry/ bathroom windows (W4 and W5) and bedroom window (W6).
Both Mr Brown and Mr Davey provided photographs to support their arguments. Those provided by the applicant showed the form of the trees from various directions, and the marked rise in his land's topography up towards the north east. They gave an incomplete picture of the trees' impact on sunlight obstruction, however.
The photograph provided by the respondent at Annexure B was taken in summer when the sun's follows a path with a very acute angle north of vertical. Unsurprisingly, both the house, and garden between the house and the trees, were bathed in sunlight, and this is of little relevance. During winter, when the sun's path is much lower in the sky towards the north, the impact of the trees on shading is much greater, and winter is generally when light and warmth from the sun is most valued, as noted by Mr Brown. Therefore, the respondent's photographs at Annexure C, taken at 9:56am on 9 June 2021, and Annexure D, taken at 11am on 22 June 2021, are much more useful.
Annexure C shows the whole of the dwelling's northern face exposed to sunlight, while Annexure D, though difficult to interpret due to its small scale, appears to show sunlight obstruction of about 50% of the kitchen window, while 75% of the house remains fully exposed to the sun.
As had been the case in Tonoli v Rappo [2010] NSWLEC 1320, ("Tonoli"), cited by the applicant in his Annexure B, in my determination of severity of impact, I took guidance from planning controls required by most councils for new developments, which inform whether building modification is required to reduce shading. This typically requires that living area windows receive at least 3 hours of sunlight to at least 50% of their surface area between 9am and 3pm as at the winter solstice.
Mr Brown streamed live video during the hearing, which provided a clear indication of the trees' shading impact on windows, particularly given that the hearing was held only one month after the winter solstice. This showed the wave-like or gently serrated pattern formed by the top of the hedge, reflected onto the north face of the dwelling. The larger trees began to cast shade on the wall at about 10:30am.
Consistent with Mr Davey's Annexure D, at its worst, the shading impact approximated 50% window coverage, but in the troughs between the trees, more direct sunlight was available, as well as strong filtered light where sunlight penetration was obstructed only by wispy apical growth. I also noticed gaps between some trees to be distinctly wider and deeper, presumably resulting in less light obstruction, as the shadows passed across the windows.
Given that the arc of the sun would reach its highest point in the sky around midday in winter, it is reasonable to infer that sunlight obstruction of windows would progressively reduce from 11am (when the photograph in the respondent's Appendix D was taken), through to about midday, then steadily increase again, with the height of sunlight obstruction on the house, being closely equivalent to the 11am level, at about 1pm.
Of the windows nominated, only the kitchen and the adjoining western side deck may satisfy the 'living area' criteria from the guidance in [22]. The deck is open to the north, but its western orientation means full exposure to sunlight is only possible after about midday. Presumably, main living areas within the house include windows facing directions other than north. The prioritisation of living areas is discussed in Voeten & anor v Adams [2011] NSWLEC 1106 at [43]-[45].
Though the applicant may desire more light in the master bedroom, because bedrooms are used predominantly for sleeping, exposure to direct sunlight is generally considered less important than for living areas. Further, the adjacent interconnected deck has east facing windows, and because the eastern tranche of trees is much shorter than those planted five years prior, and their foliage less dense, their impact on overshadowing is far less.
The Trees Act uses the word 'severely'. The Macquarie dictionary defines '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 legislature has set a high bar beyond moderate annoyance or inconvenience (De Zylva & anor v Staas & anor [2012] NSWLEC 1242 at [31]). (Emphasis added)
It is unfortunate that Mr Brown failed to provide professionally produced shadow diagrams, as recommended by the Court, and mentioned in Tonoli, in order to clarify the extent of overshadowing. In their absence, the most objective evidence was Mr Brown's live video. From this, I determined that the sunlight obstruction to a window as a result of the trees, was significant, but not yet severe.
Therefore, s 14E(2)(a)(i) of the Trees Act is not engaged.
In his affidavit, Mr Brown noted concern about increased future shading, based on the rapid growth rate of the trees, and he emphasised those in the eastern, 2015 planting, because they are positioned across the steeply rising slope. This is not relevant in determination of severity, as the wording of the Trees Act requires determination based on the situation as at the final hearing date.
In Tooth v McCombie [2011] NSWLEC 1004, at [14]-[15], Fakes C says; "14 The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing. 15 Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders."
In this case, one would substitute "obstruction of sunlight" for "loss of a view" in the commentary at [32].
Mr Brown also mentioned obstruction of light to his garden between the house and the hedge during winter, problems due to growth of mould, and future obstruction of light to solar panels. As noted by Mr Davey, gardens are not considered under the Trees Act with respect to obstruction of sunlight (Clancy v Bell [2011] NSWLEC 1017). Solar panels are not windows for the purpose of the Trees Act (Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [29]-[30]), and growth of mould is excluded as a consideration under the Trees Act.

Conclusion

As s 14E(2)(a)(i) is not met for the hedge, there is no need to consider the balancing of interests per s 14E(2)(b).
Nonetheless, I offer the following guidance. Though this case has failed to satisfy a required test under Part 2A of the Trees Act, this is a marginal situation. While the needs of the respondent for privacy and protection must be balanced against the impacts of the hedge on the applicant's exposure to sunlight, the characteristics of this situation reflect the intent of Part 2A of the Trees Act.
The hedge forms a wall-like screen. Leyland Cypress trees grow rapidly, and they readily reach a height of 20 metres when left unpruned. They are ideal for use as hedges and windbreaks on rural properties, but are renowned for causing obstruction of sunlight and views in urban areas. These trees have reached a size and rate of growth where they will increasingly shade windows, and for longer periods of the day, if they are not maintained.
Although one could say that Mr Brown was precipitous with his application, in terms of the specific requirements of the Trees Act, should the circumstances change, as is likely, given these trees' rapid growth rate, a fresh application can be made. This was determined in Hinde v Anderson & anor [2009] NSWLEC 1148.
Given that the immediate successor in title to the owner of the trees is normally bound by any orders made, in the same way as the original owner, the respondent has thus been presented with a short-term opportunity to maintain control over the management of the hedge. These trees could be pruned to maintain their height, without unduly affecting their health or function.

Orders

The orders of the Court are: 1. The application is dismissed.

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: 25 October 2021

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Cases Cited (8)