French & anor v Bendror

The applicants' position

The applicants purchased their property in July 2003 and occupied it in 2011. During the hearing the applications stated that when they purchased their large battle-axe property there were a number of buildings on the site including the original cottage. In 2011 the original cottage was partially demolished and substantially extended. The extensions include a wing parallel to the northern / rear boundary. The extensions necessitated the excavation of the rear of the site. A stone wall was constructed in order to retain the cutting. The natural soil level along the northern and eastern boundaries slopes down from east to west and more gently from north to south. The greatest difference in levels between the parties' properties is in the north-eastern corner of the applicants' property - estimated to be at least 1.5m. At the original ground level is a 1.8m timber fence constructed along the common boundary [on top of the retaining wall].
In oral evidence, the applicants stated that when they purchased their property there was a row of Cypress growing along the common boundary but at some stage [according to the application claim form - 2006] the former owners of the respondent's property removed them and replanted with the current Bhutan Cypress.
They estimate the Bhutan Cypress trees to have been between 3- 5m tall in 2011/2012. They estimate the Magnolias to be 3.5-4m tall and consider they were planted in about 2011.
The applicants engaged a draftsman to prepare shadow diagrams for the winter solstice, June 21 at 9 am, 12 pm and 3 pm. The shadows are shown in plan or aerial view as well as a perspective from the northwest. The notes accompanying the drawings relevantly state that:
Currently the Pine trees are 7m high and the Magnolias are 5m high. These heights were calculated based on the length of the shadows produced by the trees and confirmed visually using a pole of a known length.
The diagrams show the trees at their current height reduced to 2.5m and at 8m and 6m respectively, the heights they are estimated to be in 12 months' time, based on a rate of growth of 1m per year.
Apart from the shadow diagrams, the application claim form includes a number of photographs said to have been taken on 23 June 2015 and 22 July 2016. The dates and times are written on the photographs.
It was confirmed during the hearing that the draftsman measured the trees. The trees were measured during the hearing; the Bhutan Cypress are approximately 7m, with the exception of one that was pruned to 4m; on average, the Magnolias are approximately 4m tall.
The windows in contention are all along the northern façade of the rear extension; the rooms are as follows - from west to east:

Window 1 (W1) north-facing bedroom
Window 2 (W2) north-facing lounge
Window 3 (W3) west-facing dining
Window 4 (W4) north-facing dining
Window 5 (W5) north-facing dining
Window 6 (W6) east-facing dining
Window 7 (W7) north-facing glass door to kitchen
Window 8 (W8) north-facing kitchen

The Bhutan Cypress are to the north and northwest of W1 and W2; the remaining windows are opposite the Magnolias. W1, W2, W7 and W8 are setback approximately 6.5m from the stone retaining wall and about 7m from the dividing fence on top of the wall. W4 and W5 are setback about 3.5m from the retaining wall.
The application claim form includes an 'Impact Statement'. The applicants claim that the shadows cast by the 14 trees have had the following impacts, as summarised from the statement:

north-facing living areas (kitchen/family room/dining room) are in shadow 80-100% of the time during the winter months; as a result the rooms are dimmer, colder and create a 'depressive' living space which affects the mood of occupants.
Washing takes longer to dry; the backyard is colder and wetter with frosts more severe and lasting longer; impossible to grow winter vegetables; unable to enjoy outdoor entertaining;

The statement concludes with: Everyone has a "right of light" the hedges have stolen that from us
In the application claim form, the applicants state that in the winter months, windows W1, W2, W3, W4 and W5 are in full shadow for 5 hours and W6 and W7 are in full shadow for 6-8 hours. They rely on the shadow diagrams.

Findings

The applicants rely on the shadow diagrams and photographs. For the purpose of determining whether the trees are currently severely obstructing sunlight, the relevant elements of the shadow diagrams are those showing the impacts of the trees at their current height. The diagrams showing the reduction of the trees to 2.5m are helpful in identifying the probable impacts of fences and other structures. For the reasons outlined above, the diagrams showing the trees to be 1m taller are not relevant at this at stage. [While not relevant, the assumption in the note accompanying the shadow diagrams that the trees will grow 1m per annum is contrary to the opinion provided to the applicants by a horticulturalist who suggests that the Bhutan Cypress could grow 400-500mm per annum and the Magnolias 300mm per annum.]
While the shadow diagrams include the impact of fences and the applicants' dwelling, they do not include the respondent's two-storey dwelling, which is relatively close to the common boundary, or other nearby trees on the respondent's property and the property to the east. However, they do include the full row of Bhutan Cypress, which extends further to the west and then swings around at 45� to the northwest. That is, they include more than the seven Cypress trees the subject of the application. The diagrams do not appear to include the impact of the tree that was pruned to 4m before the diagrams were commissioned.
At 9.00 am the aerial view appears to show shadows of foliage on parts of the roof above W1, W2, and W6. The perspective views are from the west/north west and therefore show windows W1-W3 clearly and very limited parts of W4 and W5. They do not show windows 6-8. At 9.00 am W1 and W2 are shown to have filtered sunlight; W1 being shaded by the Cupressus and W2 by the Magnolias. W3 is shaded by the applicants' dwelling. There appears to be only partial shading of W4 and W5 (as indicated by a brighter shade of pink).
At 12.00 pm the aerial view indicates possible minor to moderate shading of W7, W8 and W2 by the Magnolias and some shading of W1 by the Cypress. Windows W4 and W5 appear to be shaded by the fence. The 12.00 pm perspective confirms minor to moderate shading of W1, W2, W4 and W5. W3 is still partially shaded by the dwelling.
At 3.00 pm the aerial view shows shade across the lawn and the courtyard between the fence and the dwelling with some shading of a corner of the roof above W3 and W4. W6 and W7 appear shaded by the dwelling. The perspective shows W1 to be unaffected by any of the trees; partial shading of W2 and probably almost full-shading of W3, W4 and W5.
The photographs are generally consistent with the shadow diagrams, albeit some were taken near the winter solstice in 2015 and others 5 or so weeks after the winter solstice in 2016. The patterns of the shadow indicate that trees and structures, including what may be the respondent's dwelling, shade the nominated windows at varying times of the day. They also show the shade cast by the cypress is more dense than indicated in the diagrams however, the photographs more clearly delineate the form of the conifers and show the sunlight allowed between the tops of the trees which the diagrams do not clearly show.
In considering applications made with respect to sunlight, the Court has considered the usual minimum development standards or controls for sunlight required by most councils for new developments. This is typically three hours of sunlight to living room windows for at least 50% of their area on the winter solstice between 9.00am and 3.00pm.
In applying this concept to all of the windows nominated by the applicants, the shadow diagrams indicate it is achieved by W1 and probably by W2. W3 can only obtain afternoon sun and is obstructed by the conifers at 3.00pm but has some sunlight at 12.00 pm unaffected by trees or the eaves. W4 and W5 appear to have some sunlight from 9.00 am until after 12.00 but the diagrams do not clearly show these windows and nor do they clearly indicate the impact of other structures or other trees. W6 can only obtain morning sunlight and the extent of obstruction as a consequence of the Magnolias is unclear. W7 does not appear to be severely obstructed by the trees; the obstruction from midday is from the dwelling. W8 appears to achieve the usual minimum amount of sunlight.
While the shadow diagrams are of some use, they do not include other nearby trees and structures that are likely to cast shadows on the applicants' windows. On balance, and on the evidence before me, I am not satisfied to the extent required by s 14E(2)(a)(i) that the obstruction is severe at this stage and therefore, there is no need to consider the balancing of interests in s 14E(2)(b). However, that said, if I had come to the conclusion that the obstruction was severe, the only trees that would appear to have caused any significant obstruction are the Bhutan Cypress.
Should any future application be made about obstruction of sunlight (see Deville & anor v Frith & anor [2014] NSWLEC 1002) it would be reasonable to show the impacts of the shadows cast with the trees at a height of 5m which, with the horticultural expertise I bring to the Court, would seem from the applicants' statement and the real estate brochure, which I consider to be reasonable evidence, the height they were when the windows were installed.
As discussed in McDougall v Philip [2011] NSWLEC 1280 and more recently in Mayes v Keene [2016] NSWLEC 1604, prior to the 2010 amendment of the Trees Act which incorporated the new Part 2A, the NSW Department of Justice and Attorney General undertook an extensive review of the Trees Act. The report was published in November 2009. The following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views is relevant. a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling. b) That this jurisdiction be strictly limited, with applications restricted to hedges which: are both high and give the effect of a solid barrier, and are causing severe impact for a dwelling, and have caused the impact to the applicant (not to the previous occupant), and are located between neighbours on adjoining land. c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title. f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.
The discussion relating to Recommendation 9 [page 35] states in part that: The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of the purchase [or in this case, when the windows were installed].
The amended Act incorporates all of the recommendations made in the review [the Act has been since further amended to include trees on land zoned 'rural-residential']. Therefore, pruning the trees to 2.5m would be unreasonable.
I also note that Part 2A does not apply to obstruction of sunlight to gardens.

At a glance

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Judgment (7 paragraphs)

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Cases Cited (6)