TREES [NEIGHBOURS] : Hedgeobstruction of sunlighttrees pruned
Judgment (1 paragraphs)
[1]
JUDGMENT
COMMISSIONER: The applicants own a battle-axe block in Hornsby. Growing along the eastern side boundary at the rear of the respondent's property is a row of about 34 Viburnum odoratissimum (Viburnum) planted in about 2004 as a privacy screen.
The applicants contend that the row of Viburnum severely obstructs sunlight to three windows of their dwelling, and as a consequence, has detrimental impacts on the applicants' health and well-being. As such, the applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the hedge.
Since receiving the Class 2 application, the respondent has had the trees pruned, most recently in early to mid-November; she does not wish to remove the trees as that would compromise the privacy of her backyard and rear of her dwelling.
During the course of the on-site hearing, the applicants' solicitor Mr Spencer stated that his clients would agree to a further reduction of the height to at or below fence level and then the maintenance of regrowth to about 500mm above the fence (estimated to be approximately 2.3m above ground level). In order to maintain her privacy, the respondent does not wish to further reduce the trees from their current height. Counsel for the respondent, Mr Glover, submits that the application should be dismissed on jurisdictional grounds.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge; and if so, do they reach a height of at least 2.5m above ground level?
The parties agree that the trees are planted so as to form a hedge. With the aid of height sticks, the trees were found to be in excess of 2.5m. Those measured were between 2.7m and 3m above ground level when measured from the respondent's property. Therefore, the Viburnum trees are trees to which Part 2A applies.
Pursuant to s 14E(1)(a) I am satisfied that the applicants have attempted to reach an agreement with the respondent.
The key test in applications made under Part 2A is found in s 14E(2) which 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.
While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling, or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. Obstruction of views is not pressed in this application.
The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
Also relevant, the Court has held that the legislature's use of the word 'severe' sets a high bar. Amongst other definitions, the Macquarie Dictionary defines the word 'severe' as 'harsh' or extreme'. The Court has accepted the word 'sunlight' to mean 'direct sunlight' rather than simply ambient light or daylight (see Drewett v Best [2010] NSWLEC 1305 at [17]).
The applicants have nominated three windows of their dwelling. Window 1 (W1) is a north-facing window of the lounge room, W2 are west-facing full length glass sliding doors of the open plan living room, and W3 is the west-facing window of the study. W2 and W3 adjoin a 4m wide terrace covered by a pergola roofed in mostly opaque polycarbonate sheeting.
The applicants have not provided any shadow diagrams or timed and dated photographs which demonstrate the obstruction of sunlight directly as a consequence of the respondent's Viburnum trees. In the absence of such evidence, the following findings are based on applying observations made on site and general knowledge of the movement of the sun at different times of the year.
The applicants' property is the rear portion of a once larger lot which slopes gently down from the street frontage towards a bushland reserve to the south. The dwelling has been excavated into the slope. As a consequence, the respondent's land is slightly more elevated.
Each of the nominated windows is considered in turn.
Window 1 is the north-facing lounge room window. It adjoins a small front verandah approximately 2m wide. To the east the side wall of the dwelling returns and incorporates the garage which projects well-forward of the verandah. On the adjoining property to the north is a more elevated dwelling at the front of the lot. At the rear of that property is a tall Magnolia growing on the western boundary. The Magnolia is close to a Mango tree growing on the respondent's property to the north of the Viburnums. The applicants' property is bounded by standard height dividing fences. The closest of the respondent's Viburnums are to the west/ northwest of the window.
Absent any probative evidence demonstrating the impact of the respondent's Viburnum trees on sunlight to W1 I am not satisfied to the extent required by s 14E(2)(a)(i) that any of the respondent's Viburnums are severely obstructing sunlight to the applicants front window. Given the location of this window, it would appear to me that direct sunlight to it would be limited by the projection of the applicants' garage, the roof of the verandah, the more elivated dwelling on the adjoining property to the north and the Magnolia tree. It is also possible that late afternoon winter sun may also be obstructed by the respondent's dwelling and or by tall trees growing on the property adjoining the respondent's land to the west.
As stated above, Windows 2 and 3 open on to a 4m wide terrace covered with largely opaque polycarbonate roofing material. There is a clear section of sheeting close to the building return at the northern end of the terrace.
The common dividing fence is about 2-2.5m from the western edge of the terrace. The tops of the Viburnum are currently almost level with the guttering on the edge of the timber pergola which supports the polycarbonate roofing and estimated to be about 700-900mm above the fence.
While I accept that the trees were much taller and wider when the applicants filed their application, they have been significantly reduced. As for W1, absent supporting evidence, I am not satisfied to the extent required by s 14E(2)(a)(i) that any of the respondent's Viburnum are severely obstructing sunlight to either W2 or W3. I note that the windows are west-facing and thus only capable of receiving afternoon sun. In mid-winter, the time of the year accepted by most planning controls as being the time at which sunlight is most limited and most valuable, it is likely that direct sunlight to W2 would be obstructed by the northern wall of the applicants' dwelling, the respondent's more elevated dwelling to the northwest, the taller trees to the west, the timber frame of the pergola and the opaque roofing material, and perhaps by the fence. Mr Spencer submits that absent the Viburnum trees, the distant trees would allow sunlight between and through the canopies. While W3 is further away from the northern wall, sunlight to this window would be similarly affected by the same structures. When viewed from inside the applicants' dwelling, the probable impact of the pergola is more obvious.
Having found that the jurisdictional test in s 14E(2)(a)(i) is not met for any of the windows, there is no necessity to consider the balancing of interests inherent in s 14E(2)(b) of the Act.
Apart from the obstruction of sunlight to the three windows, the applicants have also raised concerns about obstruction of sunlight to their clothesline and the possible bushfire risk associated with the proximity of the Viburnums to their dwelling. I note that Part 2A only applies to obstruction of sunlight to windows of a dwelling and not to clotheslines (I also note that the clothesline is at the southern end of the dwelling and would thus receive little direct sunlight). Similarly Part 2A has nothing to do with bushfires. The decision in Freeman v Dillon [2012] NSWLEC 1057 at [86] considers bushfires in the context of applications under Part 2 of the Trees Act. A letter from the Rural Fire Service included in the respondent's evidence (Exhibit 1) states that at the time of writing, the respondent's land does not present a significant bush fire threat.
As a consequence, the Order of the Court is:
1. The application is dismissed.
Judy Fakes
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: 30 November 2017