Campbell v Voller

Land and Environment Court (NSW)|2010-12-02

CITATION : Campbell v Voller [2010] NSWLEC 1351

APPLICANTS B & E Campbell PARTIES : RESPONDENTS M & P Voller

KEY ISSUES: TREES (NEIGHBOURS) :- Hedge; obstruction of sunlight and views; some views not from a dwelling; applicant dismissed on all counts

APPLICANTS B & E Campbell [litigants in person]

RESPONDENTS M & P Voller [litigants in person]

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Allambie Heights against the owners of 2 hedges growing on an adjoining property. 2 The applicants are seeking the removal of the 8 trees that comprise the 2 hedges. At the on-site hearing the applicants stated they would be content if the hedges could be maintained at a nominated height. 3 Hedge 1 is a row of 6 Cupressus macrocarpa (Cypress) growing on the south-eastern boundary of the respondents' property beside their swimming pool. Hedge 2 comprises 2 xCupressocyparis leylandii (Leyland Cypress) growing on the north-eastern corner of the respondents' property adjacent to the upper portion of the applicants' driveway. 4 Both hedges satisfy s 14A of the Act in that they are groups of 2 or more trees planted so as to form a hedge, rise to a height of at least 2.5m, and are growing on appropriately zoned land. 5 The applicants contend that hedge 1 severely obstructs sunlight to 3 windows of their dwelling and severely obstructs views from their dwelling. 6 The respondents value this hedge for the privacy it provides for their pool and outdoor entertainment area. They do not want to remove the hedge but said that they are prepared to keep it at a reasonable height. They stated that they have pruned the hedge twice. 7 With respect to hedge 2, the applicants contend that the trees block their view of the footpath when they exit their driveway. As this is not a view from a dwelling, the Court has no jurisdiction to make any orders with respect to this hedge as it does not meet the jurisdictional test in s 14E(2)(a)(ii), that is the view must be from a dwelling. Therefore this element of the application is dismissed. 8 The hearing commenced with a site inspection and each of the windows and views, said to be obstructed, was considered. 9 Window 1 (W1) and window 2 (W2) are full-length windows on thesouthern wall of the living room. These windows generally face south across the main timber deck at the rear of the dwelling. Window 3 (W3) comprises a narrow window and adjacent glass door on the western side of the dining room and adjacent to W2. 10 Above all of these windows is a timber deck that extends approximately 2m from the southern wall of the upper storey of the house. 11 To the west of W1 and W2 are stairs leading down from the garage to the main deck about 1.5m below the garage door. W1 and W2 are setback from these stairs. 12 The applicants contend that hedge 1 severely obstructs sunlight to all 3 nominated windows in the afternoon from August to March. They say they lose about 4 hours of sunlight per day. They state that the greatest obstruction is caused when the hedge reaches a height of about 6m. 13 The views the applicants say hedge 1 is obstructing are generally district views to the west and southwest. The applicants nominated 5 viewing points in their application. View 1 (V1) is from W1, V2 from W2, V3 from W3, V 4 from the approximate centre of the main deck and V5 from the garden. At the site inspection furniture was moved in order to consider the view to the southwest/west from W1 and W2. 14 With respect to V5, the view from the garden, the Court has no jurisdiction to make any order with respect to this view point as it is not a view from a dwelling and therefore does not meet the jurisdictional test in s 14E(2)(a)(ii). 15 The rear of the applicants' property adjoins a council-owned bushland reserve. The majority of the views from all nominated viewing points are to the south and of the trees growing in the reserve. From V4, the deck, the view to the southeast is also available - this is of trees in the reserve as well as parts of nearby residential properties. There are 2 trees at the rear of the applicants' property that also form part of the view to the southeast. Distant views from the deck, especially to the south, are limited by the proximity of the trees in the reserve. 16 To the southwest the views are of hedge 1 but also a fig growing at the rear of the respondents' property.

17 The applicants state that when they purchased their property in 1971 they had uninterrupted district views to the southwest. 18 The respondents purchased their property in 1985 and the elevated swimming pool at the rear of their property had been installed for some time. When they moved in, the pool was screened by a row of 6 oleanders. 19 A photograph taken by the applicants sometime between 1980 and 1985 shows some of those oleanders. The photograph was taken from ground level looking west from the applicants' back lawn. The photograph shows those plants to be at least 4m tall. It also shows a portion of the pool and pool deck on the respondents' property and a limited view to a distant ridge. It is expected that the views to the west and southwest were more extensive from the more elevated living room windows (W1 and W2). At the time the photograph was taken there was no rear deck. 20 The oleanders were later removed by the respondents and replaced with a Fig. They state that the fig and a deciduous tree on the applicants' property provided privacy to the pool area. The fig was later removed. 21 In about 2000/2001 the applicants extended their property and constructed a garage on the western side of their house and the deck at the rear. The dining room was extended by about 1.5m and W3 was installed. 22 At this time, in order to ensure privacy to their pool and rear deck, the respondents planted the 6 cypress trees (hedge 1). Photographs on pages 15 and 16 of exhibit 2 clearly show that the trees were planted before the completion of the applicants' extensions. 23 At that time an existing lattice privacy screen on the respondents' property was extended in height to provide additional privacy. The screen is approximately 3m above the respondents' deck. Tree 6 adjoins this screen.

24 At the time of the site inspection the height of the hedge was measured from the applicants' property. The respondents had recently had the hedge pruned. Tree 1 at the southern end was about 4.5m above ground level, trees 4and 5 about 4.2m and tree 6 about 4.6m. Tree 6 is about 250mm above the lattice privacy screen. 25 Coming to the jurisdictional tests with respect to sunlight. Section 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: (ii) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land,

26 In this case no shadow diagrams were submitted to support the applicants' contentions. W1 and W2 generally face south and are recessed between the garage wall to the west and the dining room to the east. They have a deck over the top that extends about 2m to the south. There is also a degree of obstruction from the external stairs to the garage and from the apex of the respondents' roof. 27 Given these directional and built constraints it is difficult to imagine that these windows would receive very much sun at all regardless of the presence of hedge 1. 28 W3 would probably receive more sun given its more westerly orientation however this too is limited by the physical obstruction of the external stairs and the deck overhead. 29 Therefore on the basis of aspect and physical obstructions to windows 1,2 and 3, I do not consider that any of the trees in hedge 1 severely obstructs sunlight to any of the windows in contention. Therefore the test under s 14E(2)(a)(i) is not satisfied and the Court has no jurisdiction to make an order for any intervention with hedge 1 on the basis of obstruction of sunlight. As a result, this element of the application is dismissed. 30 With respect to the obstruction of views, it is necessary to determine if the hedge obstructs a view from a dwelling, and if so, what is the nature and extent of the view that would otherwise be available. The question must than be asked - is it a severe obstruction? 31 From my estimates, hedge 1 obstructs less than 30 of a possible 180 view from the centre of the rear deck. This is approximately 17% of the potential view. This excludes tree 6 that is adjacent to the privacy screen on the respondents' deck but would include the fig at the rear of the respondents' property. The potential view to the south-west/ west from the nominated sites V1, V2 and V3 would be more restricted than those from the deck due to the fact that are obstructed by elements of the dwelling, the aspect of windows 1 and 2, the arrangement of furniture in the living room affecting V1 and V2, and the seating arrangements in the dining room (V3). 32 The views said to be lost are district views. When seen from the respondents' deck these include views to a distant ridge and Wakehurst Parkway however the view is dominated by trees interspersed with roofs of residential dwellings. As previously stated, the majority of the applicants' view is to an extensive bushland reserve to the south. 33 In the absence of the hedge, the applicants would have a view of the respondents' pool, other nearby dwellings and the district views they desire. The views are not considered as 'iconic', they are not of water which is generally more highly valued, but they are the ordinary but not unpleasant views that would be expected in this heavily treed part of Sydney. The lost views are of trees but at a greater distance than the views of trees to the south and the southeast. 34 The views to the west and the southwest are available from the applicants' upper deck but as this adjoins a bedroom it is not likely to be used as often as the deck off the living area. 35 After considering the evidence I am not convinced that hedge 1 severely obstructs views from the applicants' dwelling and therefore does not satisfy a 14E(2)(a)(ii). However, if I am wrong on this, I have also considered s 14E(2)(b). This section considers whether the severity 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. 36 This requires a consideration of elements in s 14F. The removal of the hedge would remove the privacy it affords to the respondents. They stated that the pool and deck are their main entertainment area; the applicants' deck is relatively close to the respondents' pool deck and in the absence of the hedge it would be easily overlooked. 37 The hedge has been recently trimmed. My observation from the respondents' pool deck was that its current height provides a comfortable level of screening. Reducing the hedge by another 2m, as suggested by the applicants, would remove this privacy and compromise the health viability of the hedge. 38 In this respect, I do not consider that the applicants' interests outweigh the consequences of the actions they seek in removing or remedying the obstruction to a limited portion of their overall view. 39 Therefore as a consequence of this, I am not satisfied that the tests in s 14E(2)(a)(ii) and (b) are met and therefore no orders can be made for the interference with hedge 1 on the basis of a severe obstruction of a view from a dwelling. 40 As a result of the forgoing, the Orders of the Court are that the application in its entirety is dismissed.

J Fakes Commissioner of the Court

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Judgment (13 paragraphs)

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