Devile v Frith

Land and Environment Court (NSW)|2011-08-08

D & R Frith (Respondents in Person) File Number(s): 20367 of 2011

Judgment 1This 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 Falkland Close, Winmalee, against the owners of trees growing on an adjoining property in Falkland Close. 2The applicants seek orders for the pruning of 27 trees on the basis that they severely obstruct sunlight to windows of their dwelling. The trees are growing along the southern side boundary of the adjoining property to the north. 3In their application, the applicants sought orders for the respondents to trim the trees to a height of 4 metres and to maintain the trees at that height. During the course of the hearing, the applicants changed that height to 7 m for pruning and for subsequent maintenance. 4The applicants' dwelling is oriented on a north-south axis with the main living areas having east and west aspects. Three of the four windows subject to the application are located on the northern side of the dwelling and one window is on the eastern side. 5W1 is a small window to a bathroom, W2 is a window to a study and W3 is a window to a garage. The application states that between May and August, all sunlight is lost to these windows. 6W4 is an east facing window to a laundry that the applicants contend loses 100% of sunlight between May and August. 7The applicants contend that the loss of sunlight to W1, W2, and W4 means that they need to have lights on at all times and that their floors remain damp with mildew forming. They also contend that the loss of sunlight means that the bathroom (W1) and study (W2) require heating and the rooms are constantly damp. 8The respondents say they value the trees for their privacy and the buffer they provide to noise and smoke that they say is emitted from the applicants' property.

The statutory framework 9The application is made under Part 2A of the Act. Section 14A(1) states: (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). 10Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land. 11Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located. 12Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1). 13Of significance is s 14E(2). This states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees are concerned: (i) are severly 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. 14If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D.

The trees and the actions of the parties 15There are 27 trees situated close to the boundary fence and parallel with the respondents' southern boundary. The trees extend for a distance of about 50 m on a north south axis. They are Cypress pines ( Cupressocyparis leylandii Leightons Green) said to have been planted by the respondents about 20 years ago, before the applicants constructed their dwelling. I estimate that at the time of the site hearing the height of the trees was from 15 to 18 m. 16The applicants constructed their dwelling in 2004 at which time they say the respondents' trees were between 4 and 5 m in height. The respondents dispute this height as they say the trees were about 11 m high in 2004. Photographs tendered in the applicants' submission show their allotment in 2004 before their dwelling was constructed. The trees in those photographs are considerably taller than 5 m and in my estimation are closer to 9 m in height. 17In August 2010, the applicants wrote to their neighbours outlining previous verbal discussions they had each had about the trees and further setting out their concerns about the loss of sunlight to rooms on the northern side of their dwelling. They wrote again in March 2011. 18The applicants say they located their dwelling 8 m from the common boundary with the respondents' land, in order to take maximum advantage of natural light in accordance with Council requirements, however they say the trees have since doubled in height and now they have lost all access to sunlight. 19The respondents acknowledge the applicants' requests about the trees and say they have gained permission from Council to trim the trees, but have declined to act on the permit although it is still valid. 20The respondents dispute the loss of sunlight to the applicants' windows. They have submitted photographs as evidence of sunlight to windows W1, W2 and W3. They say the photographs were taken at 1.30 pm from their upper storey extension on 26 June 2011. Whilst it is clear that sunlight was reaching W1, W2 and W3, it is also clear that the photographs were taken at a point in time when sunlight was able to penetrate through a narrow 6 m wide gap where trees had been removed some years earlier. The photographs show curtains fully drawn across W2 and W3.

The on site hearing 21The hearing commenced at 10.30 am on an overcast day. I inspected each of the windows from inside the house and the garage and from the outside. I also inspected the trees from the respondents' property, in order to consider their concerns about privacy. 22No shadow diagrams were available to assist me in assessing the impact of the trees on sunlight reaching each of the four windows. The applicants contend that windows W1, W2 and W3 receive about half an hour of sunlight during the winter months and W4 receives no sunlight at all. The respondents dispute this and say that their photographs show evidence of adequate sunlight to the four windows. 23The respondents contend that tall trees on land about 30 m to the east of the applicants' property block early morning sunlight in winter and that tall trees growing on their (the respondents) land to the north of the Cypress trees would block winter sunlight even if the Cypress trees were pruned. 24The applicants acknowledge the tall trees on surrounding properties, but they argue that those trees only filter the sunlight rather than entirely block it in the manner of the Cypress trees.

The findings 25Based on the site inspection and the evidence presented, I am satisfied that the trees satisfy the requirements of s 14A(1) in that the group of trees contains two or more trees (s 14A(1); are planted so as to form a hedge (s 14A(1)(a)), and rise to a height of at least 2.5 m (s 14A(1)(b)). Despite the existence of a gap of about 6 lineal metres toward the western end of the row of trees between T18 and T19 as shown on the applicant's plan, I consider that the trees form a single hedge incorporating T1 through to T27. 26Section 14E(2)(a)(i) raises four separate matters. First, the obstruction must be "sunlight", second, it must be to a "window", third, any obstruction must be "severe" and fourth, the Court must be "satisfied". 27On the first matter, I accept that the potential obstruction is of "sunlight". Second, and based on the site inspection, I accept that the hedge does obstruct sunlight to windows W1, W2, W3 and W4. Thirdly, I am satisfied that the obstruction of sunlight to W1, W2 and W3 is severe as, according to the evidence, sunlight is restricted to about 1 hour per day in winter as a result of the respondents' trees. Therefore, as the respondents' trees are severely obstructing sunlight to a window of a dwelling on the applicant's land, the Court has jurisdiction and can make orders. 28W4 is a laundry window that faces east. I accept that the respondents' trees are responsible for some obstruction of morning sunlight to this window, however I am not satisfied that the obstruction is severe. I also note the roof eaves and the applicants' gazebo situated outside the window contribute to a loss of morning sunlight. Because of the easterly aspect of this window, it would not receive direct sunlight after mid-morning notwithstanding the presence of the respondents' trees. Therefore no order can be made in respect of W4. 29I turn now to s 14E(2)(b) to consider if the severity and nature of the obstruction is such that the applicants' 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. 30W1 is a north facing bathroom window. The bathroom is a utility room that is not occupied for long periods and cannot be given weight equivalent to a living area. This small window has a folding clothesline attached across the lower third of the window. Photographs tendered by the applicants show the clothesline in use in winter 2010, although the applicants say they do not use the line any more because of the shade from the respondent's trees. 31W2 is a study located on the northern end of the house between the bathroom and the garage and is not part of the main living area of the house. Although I would give this room slightly more weight than the bathroom, laundry and garage, it is not a room that could be considered as part of the living area of the house. At the time of the site inspection this room had curtains part drawn. Photographs tendered by the applicants and photographs tendered by the respondents show curtains drawn to cover two thirds of this study window. 32W3 is a window to the garage. This window was not covered at the time of the site inspection but the applicants' and the respondents' photographs show the window wholly covered by what appears to be a sheet. A vehicle parked in the garage would act as a significant obstruction to light received through W3. I give this window the least weight relative to the four windows to which this application applies. 33The applicants seek orders to reduce the height of all 27 trees to 7 m and for that height to be maintained. To achieve a maintainable height of 7 m it would be necessary to prune to about 6.5 m height, so as to provide a reasonable period of time before pruning again. Given that the trees are now more than 14 m in height, this would amount to a reduction of more than half their present height. In my view, this degree of pruning represents a severe and undesirable disturbance of the trees that ought only to be considered if the severe obstruction of sunlight was to windows of living and family rooms. As it is, the obstruction is to the windows of service and utility rooms and I am not satisfied that the applicants' interests in having the obstruction removed outweigh the undesirability of interfering with the trees. 34Therefore as a consequence of the foregoing, the Orders of the Court are: (1) The application is dismissed. Philip 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: 25 August 2011

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Cited By (2)