Foong & anor v James [2013] NSWLEC 1218 | Case summary

Land and Environment Court (NSW)|2013-11-08

Judgment 1COMMISSIONER: The applicants have owned a property in Point Piper since 2007. They contend that a hedge growing on the adjoining property severely obstructs both sunlight to windows of their dwelling and views from their dwelling. 2To this end, they have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders requiring the pruning of the hedge to a height of 3.5m above the natural ground level (as measured from their property) and its subsequent twice yearly maintenance. 3The respondent contends that there is currently no severe obstruction of either views from the applicants' dwelling or sunlight to the nominated windows as a consequence of the hedge. The respondent maintains that the trees are important for privacy. The hedge was most recently pruned on 3 September 2013. 4Section 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 sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 5 In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether the trees are planted so as to form a hedge (s 14A(1)(a)). 6The respondent purchased her property in late 2004. At that time a row of Leyland Cypress trees was growing along the north-eastern boundary of the property above the tennis court. According to the respondent's affidavit, between December 2004 and April 2005, additional Leyland Cypress trees were planted along the north-western portion of that boundary. These trees were planted to screen views from the road into the respondent's property and presumably to provide some screening to a pool located below them. 7I am satisfied that the trees the subject of the application have been planted so as to form a hedge. Given the two discrete planting periods, trees 21-39 form Hedge 1 (the earlier planting) and Hedge 2 comprises trees 1-20 (the later planting). Although the respondent's land slopes generally from west to east, the trees have been pruned to an even level. The trees are in excess of 2.5m tall and therefore s 14A(1) is satisfied. 8The next relevant tests are found in s 14E(2). This 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. 9Section 14D(1) states that the Court may make any such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to or views from the applicant's dwelling if the obstruction occurs as a consequence of trees that are the subject of the application.

Sunlight 10The applicants contend that the trees severely obstruct direct sunlight to four windows on the ground floor of the dwelling being between the hours of 7.00am and 9.00am with loss of indirect sunlight throughout the day. [In Drewett v Best [2010] NSWLEC 1305 at [17], the Court has held that the word 'sunlight' refers to 'direct sunlight' rather than simply 'daylight'.] 11The nominated windows are:

W2 - south facing bedroom window (bedroom 4)
W3 - east facing bedroom window (bedroom 5)
W4 - south facing bedroom window (bedroom 5)
W5 east facing window in stair well. 12The applicants included shadow diagrams drawn for 7.00am, 8.00am and 9.00 am on 22 December. The shadow diagrams do not include any information as to who drew them. The diagrams illustrate the alleged effect of the respondent's trees and show no influence of any other structure including self-shadowing by the applicants' dwelling. The diagrams illustrate the effect of the trees before the application was filed with the Court (28 August 2013) and before the trees were pruned in September 2103. 13The applicants' rationale for using 22 December is that if sunlight is obstructed at that time of the year, being the longest day and the summer solstice, it will be more obstructed at other times of the year. 14The diagrams show shading across the southern portion of the dwelling including the nominated windows. The principal living areas are not shaded. 15Notwithstanding the recent pruning, the applicants maintain that the trees still severely obstruct sunlight to the nominated windows. 16Section 14E(2)(a)(i) and (ii) require the trees the subject of the application to be severely obstructing sunlight or views at the time of the hearing (see Tooth v McCombie [2011] NSWLEC 1004 at paragraphs [14]-[15] with further discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]). 17I am not satisfied on the evidence that any of the trees are currently severely obstructing sunlight to any of the nominated windows. Therefore the application fails to meet the jurisdictional test in s 14E(2)(a)(i). 18However if I am wrong in this, as a matter of discretion after considering s 14E(2)(b) and relevant matters in s 14F, I find that further interference with the trees on the basis of sunlight is not warranted. 19In this regard I note that the windows generally face south and therefore are inevitably incapable of receiving very much direct sunlight although early morning sun is likely, especially at the summer solstice when the sun rises to the south of east. However, in the winter months when the sun rises to the north of east, much less sunlight is likely to fall on the south-facing windows. 20The shadow diagrams, such as they are, give little assistance. There are no shadow diagrams demonstrating the benefit the applicants seek by having the trees reduced to 3.5m. Similarly the diagrams do not show the impacts of other structures or elements of the applicants' dwelling, such as eaves, on the nominated windows. 21The windows are bedroom windows not windows of living areas and therefore it can be reasonably expected that less time is spent in those rooms during daylight hours. In this respect, the Court often has regard to the usual council planning controls for solar access which focus on living rooms and private open space and not on bedrooms or service areas. 22The trees provide a number of benefits to the respondent including privacy to areas of outdoor open space and to some windows of the dwelling. 23On balance, I find that the applicants' request for further pruning to enable more sunlight into those windows cannot be supported on the evidence before the Court and that element of the application is dismissed.

Views 24The applicants contend that the trees severely obstruct district views of Rose Bay and Bellevue Hill as well some water views of Rose Bay. Five viewing points are nominated:

V1 - an east facing bedroom window on the first floor (bedroom 1); the views said to be obstructed are district views to the southeast;
V2 - east-facing window of bedroom 2, first floor - district and water views to Rose Bay;
V3 - south-facing window adjoining W2 - district views of Bellevue Hill;
V4 - east-facing kitchen window, first floor - views to Cranbrook School and Bellevue Hill; and
V5 - east-facing laundry window, first floor - water and esplanade views to Rose bay. 25During the on-site hearing I observed uninterrupted views of Rose Bay and environs to the east from V1. The applicants maintain that trees in Hedge 1 still obstruct district views to the south-east. However, I was able to observe unobstructed views of Bellevue Hill. Close views into the respondent's property were slightly obstructed. 26The views from bedroom 2, V2 and V3, were unobstructed views of Rose Bay and into the respondent's tennis court. 27The outlook from V4 is constrained by a wall of the applicants' dwelling. The viewing corridor is to the southeast and district views were unobstructed by the respondent's trees. The views from the laundry, V5 were similarly unobstructed. 28While not nominated as a viewing location, the views from the main living area towards Rose Bay are unobstructed by any of the respondent's trees. 29While I accept that when the application was made the trees may have obstructed views from the applicants' dwelling, I find that none of the trees to which the application is made are currently severely obstructing any view from the applicants' property. Therefore the jurisdictional test in s 14E(2)(a)(ii) is not met and this element of the application must be dismissed.

Orders 30Given these findings, the Orders of the Court are: (1)The application is dismissed.

Judy Fakes Commissioner of the Court

Amendments 18 November 2013 - typographical error '2103' changed to '2013' Amended paragraphs: 3 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: 18 November 2013

Foong & anor v James

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