Kenney-Herbert v Humble & anor

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

Judgment 1COMMISSIONER: The applicant purchased her ground floor unit in Woollahra in 2003. She is concerned that a hedge planted on the adjoining property severely obstructs sunlight to the living areas of her dwelling, especially in winter. 2The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of the hedge to a height no greater than 700mm above the top of the dividing fence. During the hearing, the applicant's agent Ms Young, considered that further reduction to fence height would be more appropriate. 3Mr Hemmings, for the respondents, submits that the shading of the applicant's dwelling is a consequence of the respondents' dwelling and not the trees that form the hedge. To that end, he contends that the Court has no jurisdiction to make the orders sought by the applicant.

Assessment framework 4Relevant to this matter, section 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 land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 5The Court has accepted the word 'sunlight' to be 'direct sunlight' rather than just daylight (see Drewett v Best [2010] NSWLEC 1305 at [17]). 6Before considering the nature of the obstruction, the first jurisdictional test to be considered is s 14A. This requires that there must be two or more trees planted so as to form a hedge, and if so, are they at least 2.5m tall. The trees must be on appropriately zoned land. 7The Court's jurisdiction to make orders is found in s 14D. Relevantly, s 14D(1) states that the Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned. 8Section 14E(1) requires that the Court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated. 9The next relevant tests are 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. 10Should the trees be found to be causing a severe obstruction of sunlight to any of the applicant's nominated windows, section 14E(2)(b) requires consideration of a number of discretionary matters in s 14F. 11These jurisdictional tests must be satisfied sequentially before the Court's power to make orders under s 14D is engaged.

Are the trees planted so as to form a hedge? 12There is no dispute that the trees, a row of x Cupressocyparis leylandii (Leyland Cypress) - the subject of this application, are planted so as to form a hedge and are in excess of 2.5m. The trees in question are growing at the rear of the respondents' property along the southern side boundary. The applicant's unit is to the south. 13At the time of the hearing, the portion of the hedge opposite most of the applicant's unit (closest to 4 of the 5 nominated windows) was measured at 3.3m on the respondents' side of the dividing fence. As the hedge is cut with a bevelled edge, the edge closest to the applicant's unit was approximately 3m.

Has there been a reasonable effort to reach agreement? 14Correspondence filed by the parties indicates that in early 2011, someone representing the owners of the units in which the applicant resides sent a letter to the respondents. The letter (not filed) appears to raise concerns about the boundary hedge between the parties' properties, particularly in regards to solar access to the ground floor apartments closest to the hedge. 15The respondents' reply and ensuing correspondence, including letters co-signed by the applicant, shows that while the respondents undertook further pruning this was insufficient to satisfy the concerns of the adjoining neighbours. 16The correspondence identifies the source of the demands to prune to fence height or to 700mm above the fence line. 17The first respondent states that they had not heard from the adjoining property since January 2012 until the application with the Court was filed. 18As the matter has come to the Court it is clear that the parties could not agree on a solution that satisfied all concerns. Despite the gap in correspondence, and the impasse, this does not mean that a reasonable effort to reach agreement has not been made. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraphs [191] to [196] Preston CJ discusses what constitutes a reasonable effort and the requirement for it to have occurred prior to the making of orders, that is, anytime before a judgment is handed down. While those references in Robson refer to s 10(1)(a) in Part 2 of the Act, the wording of that section is almost identical to the wording in s 14E(1)(a) in Part 2A; the exception is that s 14E(1)(a) refers to 'trees' rather than 'tree'. 19I find that a reasonable effort to reach agreement has been made and s 14E(1) is satisfied.

Is there a severe obstruction of sunlight as a consequence of the trees? 20The applicant has nominated five windows on the northern side of the ground floor of her two-storey unit. The applicant's unit is located within the middle portion of the northern wing of a four-storey unit block to the south of the respondents' property. It occupies the ground and first floors. 21From west to east the windows are: W1-W2 living room, W3-W4 dining room, and W5 kitchen. The living/dining room is an open plan room and the kitchen is up a few stairs. Bedrooms are located on the second floor but no windows have been nominated on this level. 22The outer wall of the applicant's unit is from 900-800mm from the timber fence that divides the parties' properties. The setback is widest at the western end. A concrete path separates the fence from the unit block. 23The land on which the units are built slopes downhill from east to west. The applicant's unit is towards the western end. The construction of the portion of the unit block in which the applicant's unit is located is such that the ground floor is essentially excavated into the slope. The path between the fence and the units is generally at natural ground level. Therefore from west to east, the window sills are closer to the ground and similarly, the height of the fence increases relative to the height of the windows. 24The applicant contends that from 12:00 noon from April through the winter months, the windows receive no direct sunlight. The application includes photographs taken on 14 April 2013 at 12pm. The photographs show the nominated windows to be in almost full shade. The top of the shadow is uneven and consistent with being caused the top of the adjoining hedge. The shadow is well above each of the five windows. No shadow diagrams were provided. 25In 2009 the respondents submitted a development application (DA) for substantial alterations and additions to the rear of their heritage listed dwelling. The plans include a swimming pool in the south-western corner of the property. The DA included a number of shadow diagrams - both standard plan view as well as 3D diagrams. The shadow diagrams show the shadows cast by the dwelling and other structures, excluding plants, that existed at the time and the dwelling and other structures as proposed by the DA and now built. Amongst other things, the DA also included proposed landscape plans as well as photographs showing the dwelling and garden taken shortly before the DA was lodged. 26Woollahra Council subsequently granted consent to the DA and the alterations and additions were presumably constructed in accordance with the approved plans. Therefore while the plans and shadow diagrams were prepared in 2009 I am satisfied they represent the impact of relevant structures as found at the time of the hearing. 27The most helpful shadow diagrams are 3D diagrams, which show the shadows cast onto the applicant's block of units. Of relevance is that, given the relative levels and the proximity of the dividing fence to the northern side of the units, only windows W1 and W2 are shown on the 3D diagrams. The other windows are effectively below fence level. 28The 3D diagrams for the original dwelling at the equinoxes at 9.00am, 12.00pm and 3.00pm indicate that W1 and W2 would have received full sun at 12.00pm and 3.00pm but about 50% direct sunlight at 9.00am because of self-shading as a consequence of the recessed windows. During midwinter at 12.00pm only W1 would receive a sliver of sunlight at the top of the window due to shading by the fence. In the morning the principal shadowing is due to the dwelling. The plan view shadow diagrams also illustrate shading by the fence. 29The 3D shadow diagrams for the proposed dwelling, now constructed, show similar shadowing with the exception that W1 only receives a sliver of sunlight at 3.00pm in midwinter. 30During the on-site hearing the relationship between the nominated windows and the adjoining fence was verified. From sitting and standing positions within the relevant rooms. W4 and W5 are below the level of the fence with the sill of W5 below the ground level of the respondents' property. The vast majority of W3 is also below fence level. The upper portions of W1 and W2 are above fence level. 31On the basis of the evidence of the shadow diagrams and the observations made during the hearing, I find that the Court has no jurisdiction to consider windows W3, W4 and W5 as the obstruction of sunlight is not as a consequence of the trees to which the application is made. 32While the applicant's photographs show the top of the shadows on the wall are those cast by trees in the hedge, those shadows are well above the height of the windows and they do not prove that the windows themselves are not shaded by the fence or other structures.

Is there are severe obstruction of sunlight to W1 and W2 as a consequence of the trees? 33As discussed above, the 3D shadow diagrams for the proposed development indicate that at the equinoxes, W1 and W2 would have received some sunlight at 9:00 am and full sun at 12:00pm and 3:00 pm. However, in midwinter only the top of W1 would receive sun at 3.00pm. As the shadow diagrams do not include vegetation, I consider that trees in the hedge do obstruct sunlight to W1 and W2 at certain times of the year. In putting the applicant's case at its highest, I am prepared to accept that the obstruction is severe. 34Therefore as s 14E(2)(a)(i) is satisfied, I must consider s 14E(2)(b) and the balancing of interests that section requires. 35As stated above, this requires consideration of relevant matters in s 14F of the Act. In this case, the relevant matters are:

The trees that comprise the hedge are located on the respondents' property along their southern boundary and the dividing fence between the parties' properties. The hedge is generally maintained to be aligned vertically with the fence on the applicant's side. Therefore the closest part of the hedge is about 900mm from W1 and W2 (s 14F(a));
The trees were established prior to the respondents' purchase of their property but after the applicant purchased her unit. The respondents submit that at the time the applicant purchased her unit, there were many more tall trees in the rear garden of the respondents' land including a dense planting along the southern boundary. Early plans for proposed developments by former owners of the respondents' property identify these trees (s 14F(b)). While there may have been more or less sunlight to the applicant's dwelling as a consequence of other trees, this application is made in regards to the existing hedge and therefore the impact of any trees removed prior to the making of the application has little, if any relevance.
Section 14F(e) refers to any relevant consent requirements or conditions relating to the applicant's land or the land on which the trees are situated. The approved landscape plan for the alterations and additions to the respondents' property shows the existing Leyland Cypress hedge as retained. It also shows several other trees to be planted to the north of the hedge. The respondents' bundle of material (exhibit 1) includes the report of the council officer who assessed the DA. In regards to the potential impacts of the development on the privacy of the applicant's unit block, the officer notes the existing high boundary fence and substantial high landscaping on the southern boundary. Mr Hemmings contends that the applicant did not object to the development proposal and that contemporaneous photographs included with the DA show the hedge to be at least at its current height. He also maintains that the DA was subject to a full merit assessment under s 79C of the Environmental Planning and Assessment Act, 1979 and the proposal was found to be acceptable.
The trees contribute to the natural landscape and scenic value of the respondents' property and contribute to privacy, landscaping, garden design and general amenity. The respondents submit that they rely on the hedge for privacy, particularly to the pool area. Ms Young for the applicant argues that the respondents should have been aware of the privacy issues arising from purchasing a dwelling adjoining a block of units. In addition, the applicant states that she is unable to see into their garden from her living area but that overlooking is possible from levels above. She states that given the addition of various windows to the southern side of their dwelling into which people on other levels can see, she maintains that the respondents' arguments about privacy should be given little weight (s 14F(h),(l));
Section 14F(k) considers the impact on the trees of pruning. Neither party engaged an arborist to provide independent expert opinion therefore I rely on the arboricultural expertise I bring to the Court. [I note that the respondents included a 2011 letter and accompanying photographs from an arborist, William Home from Dr Treegood. This was of limited assistance although it does show the trees in 2011 to be taller than they now are as they were about W1 and W2 and he advises that a further reduction of 1 metre would be possible.] It would appear from the evidence of garden maintenance dates and the appearance of the hedge that the trees are regularly pruned. As stated previously, the trees have been shaped to create a bevelled edge on the applicant's side, the stated intent being to maintain the respondents' screen but enable light into the applicant's unit.
As considered in some detail earlier in this judgement, absent the hedge, the applicant's windows receive almost no direct sunlight in midwinter. Only the very top of W1 receives some sunlight at 3.00pm. This shading is a consequence of the respondents' dwelling and the fence (s 14F(m));
Paragraphs [14]-[19] indicate the actions of the parties (s 14F(n)). The first respondent's letter advises that the hedge was pruned twice in 2010 with the top cut at an angle to increase light access. The letter advises that the hedge was to be pruned by an extra metre in accordance with advice from their arborist, 'Dr Treegood'. This appears to have been undertaken. The respondents maintain that had they been made aware of the applicant's concerns when planning their DA, action could have been taken at that stage, however, the only submission from anyone in the unit block was in regards to possible noise from the pool.
The applicant could not give precise details as to the extent of sunlight lost except that she receives no direct sunlight after 12:00pm and therefore I must rely on the shadow diagrams provided by the respondents (s 14F(o)); and
The trees are evergreen (s 14F(p)).

Consideration 36I accept that some trees in the respondents' hedge do severely obstruct sunlight into W1 and W2 for part of the year. The applicant is most concerned about winter sun however, the evidence of the shadow diagrams is that only the top of W1 would be capable of receiving a small amount of winter sun should the hedge be reduced to the height of the fence. 37In my experience, while Leyland Cypress trees are tolerant of pruning and hedging, reducing the trees to fence level, as pressed by Ms Young, would necessitate reducing the trees to almost half their current size when measured from the respondent's property. In my opinion this would have an unacceptable impact on the appearance and health of the trees. As the cuts would be made into large diameter wood it would take some years for the top of the hedge to recover its foliage and there is no guarantee this would happen. Therefore, reducing trees to fence height is not supported. 38While the applicant seeks a reduction to 700mm above the fence, this would require a further 500mm reduction on the applicant's side and 800mm on the respondents' side if the bevelled edge were to be removed. This could be achieved by a further step-down in the vicinity of W1 and W2. While the impact would be less than a more radical prune, it is likely to be somewhat detrimental and recovery would take some time. However, the applicant has not provided any evidence to support the reduction she seeks. That is, there is no evidence showing the expected increase in sunlight to W1 and W2 as a result of this reduction. 39The word 'hedge' is only used in one of the jurisdictional tests - in s 14A(2)(a). The remainder of the jurisdictional tests refer to 'trees'. There is no evidence as to which trees in the hedge obstruct sunlight to W1 and W2 and therefore the portion of the hedge, or the individual trees, that may be reduced. The evidence of the shadow diagrams shows that the shading of W1 and W2 is not a consequence of the entire hedge. 40Given this uncertainty and lack of information, and in the light of the matters considered in [35], in particular those relating to the DA for the respondents' additions and landscaping, I find that on balance, the applicant's interest in having the hedge pruned does not outweigh the undesirability of disturbing or interfering with the trees by making an order under this Part. That is, s 14E(2)(b) is not satisfied and the Court's power under s 14D to make orders is not engaged.

Orders 41As a consequence of the foregoing, the Orders of the Court are: (1)The application is dismissed. (2)Exhibit 1 is returned.

Judy Fakes 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: 15 November 2013

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