Hazlewood v Paton

The Part 2A application 22The applicant contends that the respondent's trees block 95% of the sunlight to his property all day. 23In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. 24The first relevant test is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that are planted so as to form a hedge. 25I am satisfied on the evidence of the spacings, linear arrangement and species that the trees the subject of this application meet this test. 26The trees are estimated to be 12-14m tall and therefore meet the requirement in s 14A(1)(b) that they be at least 2.5m tall in order to engage the Court's jurisdiction. 27The next relevant test is s 14E(2)(a)(i) which states that the Court must be satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. If a severe obstruction is found, s 14E(2)(b) requires that the Court must not make an order under this Part unless 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. This in turn requires consideration of relevant discretionary matters in s 14F. 28The applicant has nominated a number of windows. The windows are not numbered on the diagram but include a north-facing bedroom window, north-facing glass sliding doors to a partly enclosed patio, and west-facing windows of the living room, kitchen, family room and garage. The diagram incorrectly indicates south rather than the north point, that is, the respondent's trees are to the north rather than to the south of the applicant's property. 29The applicant includes a number of photographs in his application and claim form. None of the photographs have dates or times on them however the applicant stated that the photographs were taken in winter at 10.00 am or thereabouts. The photographs principally show shading of the garden by the trees - Part 2A does not apply to shading of gardens. One photograph shows tree shadows across the roof at the rear of the applicant's dwelling. Other photographs indicate shading as a consequence of elements of the building. 30At the morning hearing it was observed that the north facing bedroom window would most likely receive morning sun, as the area to the northeast of it is free of obstructions. 31The north-facing glass doors are located beneath a covered porch, the northern side of which has timber slats across it (not shown in the photographs). The west facing windows are likely to receive afternoon sun. 32Question 4 in the claim form asks an applicant to detail the amount and number of hours per day of any sunlight lost to each of the nominated windows and the time of year. It also suggests attaching shadow diagrams if they are available. 33Absent any of this information and on the very limited material supplied by the applicant I am not satisfied that the applicant's claim that the respondent's trees shade 95% of his property all day can be supported. Therefore, I cannot conclude that there is a severe obstruction of sunlight to windows of the applicant's dwelling as a consequence of the respondent's trees. 34However, if I am wrong in this, there are a number of discretionary matters that are relevant that can be considered under s 14F(k) and (s). 35The respondent purchased her property in 2002 and stated that, at the time, the trees were well established and almost at their current height. A photograph dated 12/12/2003 shows nearby trees that have since been removed but were said by the respondent to be part of a much longer row of trees that included the trees the subject of the application. The trees in the photograph are clearly tall and well established. 36The applicant argues that he remembers the trees as being 2-3m tall when he purchased the adjoining property to the east of the respondent in 2002. 37Again, with the expertise I bring to the Court, on the basis of the trees' form, diameter and extension growth, the respondent's recollection of their height is far more realistic. 38The applicant purchased his current block of land in 2003 and built the house on that land in 2011/2012. The trees would have been almost at their current height when the dwelling was built. I am surprised that having owned the land for such a long time, the applicant does not appear to have factored in the presence of the trees and the shadows they cast across his land. When this was put to him, the applicant stated that he assumed that the respondent would agree with him and have the trees pruned. 39In regards to the pruning sought by the applicant - the removal of the centres of the trees and a reduction to half their height, would, in my opinion have a detrimental impact on the health, condition and appearance of the trees and cannot be supported. The applicant has provided no evidence as to the quantum of difference this would make to sunlight to windows of his dwelling. 40Therefore, there is insufficient evidence to prove s 14E(2)(a)(i) and s 14E(2)(b) is similarly not satisfied. On this basis, the Court has no jurisdiction to make any orders for intervention with any of the trees to which this Part applies.

Orders 41On the basis of the foregoing, the Orders of the Court are: (1)The application in its entirety is dismissed.

Judy Fakes Commissioner of the Court

Amendments 06 February 2014 - typographical error - 'respondent' changed to 'applicant' Amended paragraphs: 38 line 1 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: 06 February 2014