Is s 14E(2)(a)(i) satisfied?
31The 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, sold, 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 even moderate annoyance or inconvenience.
32While I accept that each of the eight cypress trees will to some extent obstruct sunlight to the nominated windows of the applicants' dwelling, on the evidence before me, I am not satisfied to the level required for the making of orders, that the obstruction caused by any of them is severe.
33The photographs tendered by the applicants have no time or date on them and are of limited assistance in proving their case except that they do show W1 and W2 to be in almost full shade. The only information is that the photographs were taken some time in June 2011.
34The orientation of W1 is such that it will mostly receive only afternoon sun. It would appear from the oral evidence on site that in mid winter W1 receives some sun before 1:00pm then loses it for about 2 hours than receives late afternoon sun until sunset. While not quantified I am assuming that the window may receive up to 2 hours of sun and is in shade for at least 2 hours. While I agree that the Cypress trees are certainly likely to make a contribution to that shade, there are trees on the applicants' land that will contribute to the shade and other trees on the respondents' land that would have a similar impact even in the absence of the conifers. I have referred to the down slope position of the applicants' dwelling and the more elevated dwellings, trees and ridgeline to the northwest. It would not be unreasonable for me to assume that these physical aspects of the site and the locality place limits on sunlight reaching W1.
35With respect to W2, these face north and will receive more sun than W1 however, these windows are also likely to be affected by trees on the adjoining property to the south-east and by trees on the applicants' property. As with W1, the Cypress trees will have some impact on the afternoon sun but the uncertainty of the quantum of that impact is such that I am not satisfied that the impact of those trees is sufficient to engage the jurisdiction and the making of orders for any interference with them.
36I have formed the opinion while the cypress trees will obstruct some afternoon sunlight to W3; the window is otherwise constrained by its location, orientation and vegetation on the applicants' property. Even if I were to find that the obstruction was severe (and I have not), given the other constraints and the limited angle for any direct sunlight to that window, I would find on balance and after consideration of s 14E(2)(b) and S 14F, that it would be unreasonable in the circumstances to order any interference with the trees.
37In regards to W4, there is no evidence to demonstrate that any or all of the Cypress trees severely obstruct sunlight to these windows. As stated above, this window is shaded by the wing to the north, vegetation on the applicants' land - in particular the large camellia to the west of the window, and the broad eaves.