Knox v Love

Land and Environment Court (NSW)|2011-08-11|Before: Ms J, Mr J

J & B Love (Respondents in person) File Number(s): 20275 of 2011

Introduction 1The owners of a property in Pymble have applied to the Court seeking orders regarding trees on an adjoining property and associated issues. 2This tree dispute application is in two parts. Firstly, pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), the applicants seek the removal of the English Oak that grows on the respondents' property on the basis that it has caused damage to their property. They also seek orders allowing them to reinstate the stormwater, sewer and concrete paving in their property, and for repairs to a damaged wall of their dwelling, at the respondents' cost. Other orders sought under this part of the application include removal of soil build-up against a fence and removal of a water tank. 3Secondly, pursuant to s 14B Part 2A of the Act, the applicant seeks orders for the pruning of a hedge of mixed species growing on the respondents' property, and the ongoing maintenance of the hedge at a given height, on the basis that it obstructs sunlight to windows of their dwelling. Other orders sought under this part of the application include the removal of the English Oak mentioned above and an order preventing the respondents from undertaking any further planting along their eastern boundary.

Damage claim under Part 2 of the Act 4The applicants have included extensive background information with their application, outlining the history of sewer and stormwater blockages near their western boundary, and damage to the dwelling. However on the basis of the evidence before us, we are not convinced that the tree has caused damage to the dwelling and, even if we were so convinced, cannot quantify that damage nor estimate the tree's contribution to the damage were other causal factors involved. Given the importance of this issue in regard to the claim, the applicants were provided with an opportunity to obtain an independent engineer's report and have undertaken to do so. The hearing of this part of the application was therefore adjourned.

Claim under Part 2A of the Act 5The applicants claim that the hedge growing on the respondents' property along the common boundary obstructs sunlight to several windows on the ground floor of their dwelling.

Extent of the hedge 6The hearing took place onsite, beginning with an inspection of the hedge from within the respondents' property. It was first necessary to clarify the extent of the hedge for the purpose of the application. A row of eight established Camellias, which the parties agree were present when the applicants purchased their property in 2006, grows along the eastern boundary, extending from a point near the front boundary to a point near the applicants' kitchen window and laundry door. 7Where a gap existed along this row of trees, a Maple was planted some years ago. It is potentially of a similar size to the Camellias and will, with growth, form a continuous linear form of foliage with the Camellias. 8Trees further to the south along the boundary are close to the roofline of the respondents' dwelling. Afternoon shading to the applicants' property along this section is to windows of service or utility areas and is likely to be at least partially caused by the roof of the respondents' dwelling. Based on this, the applicants did not want to press the application with regard to these trees. 9Smaller Camellias that have been planted in recent years between the row of eight Camellias and the boundary fence are significantly shorter, are planted on lower ground and do not obstruct sunlight to the applicants' dwelling. 10The application under Part 2A of the Act included the English Oak as part of the hedge and sought its removal. The Oak tree appears to be around the same age as the dwellings, which were built 49 years ago. Although the Camellias were present when the respondents bought their property in 1987, they appear to be significantly younger than the Oak. 11The crown of the English Oak, which is approximately 16 m tall, is above and physically separated from the continuous canopy of the Camellias, which range in height from 2.7 to 4.3 m. 12As the Oak was planted at a different time to the Camellias, is a different species with very different traits of size and form, and has a physically distinct crown that is not part of the continuous hedge-like form of the camellias, we determined it not to be part of the hedge. The applicants were informed of this. 13It was therefore determined that the hedge consists of the eight mature Camellias and the one maple in their midst.

Applicants' position 14The applicants took us to the four windows to which, they say, sunlight is obstructed by the hedge. While windows further to the south may have been at least partially shaded by the hedge, they conceded these were to service or utility areas and did not press the application in regard to them. 15Window 1 faces north from the living room, which is on the northwest corner of the dwelling's ground floor. In winter, sunlight hits the window. Sunlight is obstructed by the Camellias at the northern end of the hedge from mid-afternoon. The applicants' evidence (Exhibit A) included a photograph (photo 21 in tab 1) showing the window at 3 pm on 18 June, when only the top 1/6 of the window was not shaded by the Camellias. 16Window 2 faces west from the living room. Photo 22 (Exhibit A, tab 1) showed this window over 90% shaded by the Camellias at 3 pm in winter. 17Window 3 faces north from the kitchen, which adjoins the living room. Photo 23 (Exhibit A, tab 1) shows the window completely shaded at 3 pm in winter. 18Window 4 faces west from the kitchen. Photo 24 (Exhibit A, tab 1) shows less than 10% of the window receiving sunlight at 3 pm in winter. 19The applicants appreciate the amenity and screening provided by the Camellias, but contend that this could be maintained even if the trees were pruned to allow more sunlight to reach these windows. They do not want the Camellias removed. 20The applicants stated that if all of the Camellias were the same height as the shortest one north of the English Oak, this would be a satisfactory balance of maintaining the amenity of the hedge while allowing them sufficient sunlight. We measured this tree to be 3.0 m tall. 21The applicants contend that the Camellias have grown up to 1.5 m in height since they purchased their property in 2006.

Respondents' position 22The respondents stated that throughout winter they use the outdoor area at the northeast of their dwelling as it receives the most sunlight. They stated that the rear garden is mostly shaded in winter. 23The hedge provides visual screening between this area, as well as windows at the front of the dwelling, and the applicants' dwelling. They wish to maintain their privacy, especially in regard to overlooking from the applicants' living room and kitchen windows, but also from upstairs windows that, although frosted, are sometimes open. 24They also wish to utilise the hedge to soften the built form of the applicants' dwelling, which is in close proximity to their own. 25The respondents are keen gardeners and have entered their Camellias in gardening shows. 26They contend that the Camellias have grown around 23 cm ("9 inches") in height since the applicants purchased their property in 2006.

Observations 27The Camellias are in good health. They range in height form 2.7 to 4.3 m. They provide a dense visual screen along the boundary and provide privacy to both parties with regard to the applicants' ground floor windows. They would need to be taller to provide screening to the applicant's first floor windows. 28Without the presence of the hedge, Window 1 would receive winter sun throughout extended periods of the day, as it is on the north face of the dwelling. It is shaded by the Camellias from mid-afternoon. 29Due to their position and orientation, the other three windows do not receive winter sun until after midday. The hedge obstructs sunlight to these windows from mid-afternoon.

Jurisdiction 30The eight mature Camellias, along with the Maple, have been planted so as to form a hedge. They are, or will be, of a similar size and shape; they form a continuous row of interconnected canopies. The trees are at least 2.5 m in height. 31Accordingly, s 14A states that Part 2A of the Act applies to this group of trees. 32In this case, before making an order under Part 2A, the Court must be satisfied, according to s 14E(2)(a)(i), that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicants' land. 33Although most of the windows only receive afternoon light, this is to an area of the dwelling where the respondents, who are parents, are likely to be preparing an evening meal during the late afternoon and their young children are likely to be close by in the kitchen or living room. An increase in winter sunlight to these windows is likely to have a significant positive effect. With this in mind, we regard the obstruction of sunlight to these windows - an obstruction of over 90% during several hours of the late afternoon - as severe. 34We consider that the applicant's interest in dealing with the obstruction outweighs any minor impacts of pruning. Therefore, as we are satisfied that the tests in both s 14E(2)(a) and (b) of the Act are met, we can proceed to make orders regarding the trees. 35Before determining what orders are to be made, we are to consider the matters listed in s 14F of the Act.

Discretionary matters 36We consider the following matters listed in s 14F to be relevant to this application. (a)The trees are close to the boundary and close to the applicants' dwelling. The applicants' land is lower than the respondents', perhaps magnifying the perceived proximity of the hedge to the dwelling. (b)The trees did not exist prior to the applicants' dwelling. (c)The parties presented differing views as to how much the trees have grown since the applicants bought their property. Even if they have grown as much as the applicants claim, some of the trees were already 2.5 m tall when the applicants purchased their property. (k)The trees would tolerate being pruned for height reduction. (l)The trees make a significant contribution to privacy as well as to the landscape. (m)From spring to autumn the large Oak tree would contribute to obstruction of sunlight to these windows. (o)During winter, the Camellias cause up to 90% obstruction of sunlight for several hours during the afternoon. (p)The Camellias are evergreen. (r)Sunlight is obstructed to the kitchen and living area.

Conclusions 37Expectation of some privacy for the respondents is reasonable. 38Complete privacy in the respondents' front garden, from the applicants' upstairs windows that are only open for short periods and are not in living rooms, cannot be reasonably expected. The respondents' front garden be seen from the street, 39Pruning to allow more sunlight will not shorten the trees' lifespans. 40The trees can be pruned so as to maintain visual screening between the applicants' ground floor windows and the respondents' property.

Orders 41Considering the foregoing, the orders of the Court are: (1) The respondents are to prune the hedge, which consists of eight Camellias and one Maple, to a height no greater than 3.0 m above ground level, measured from the base of each tree. (2) The orders in (1) are to be carried out within 60 days of the date of these orders. (3) The respondents are to maintain the hedge at a height no greater than 3.3 m above ground level, measured from the base of each tree. Susan Dixon Commissioner of the Court D Galwey 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: 24 November 2011

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