TREES [NEIGHBOURS] Hedgeobstruction of sunlight and views
Judgment (5 paragraphs)
[1]
judgment
COMMISSIONER: The applicant owns a property in Pennant Hills. He has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders for either the removal of a row of conifers growing on the respondents' property and their replanting away from the fence line or replacement with a smaller species. The applicant considers that pruning the trees is not an option.
The orders are sought on the applicant's contention that the trees severely obstruct sunlight to windows of his dwelling and views from his dwelling.
The applicant claims that the trees have been planted too close to the fence and are growing over the fence into his property. He maintains that the trees will only get bigger and that he shouldn't have to pay to maintain them away from his property.
The respondents maintain that there is no severe obstruction of sunlight to the applicant's dwelling. I note in the respondents' statement (Exhibit 1) that the trees indicated on the aerial and photographs are not the trees the subject of the application. The trees indicated by the respondents are trees in their front garden. It was confirmed on site that the trees about which the applicant complains are in the respondents' rear garden.
The hearing was conducted on site. Because of past conflict between the parties, each party stayed on their own property but placed themselves close enough to the boundary to hear what was being said. Clear instructions were given that neither party was to say anything to me without the other hearing. At the end of the site view, and having heard from the parties, rather than deliver an extemporaneous judgment on site, I reserved the judgment for delivery by telephone later in the day. This decision was based on the increasingly belligerent manner of the applicant and his intimidating behaviour towards the respondents. In my view, some distance between the parties was warranted.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and do they reach a height of at least 2.5m above ground level?
The trees the subject of the application are a row of 14 Leyland Cypress (possibly the cultivar 'Naylor's Blue). The row incorporates two established specimen trees, a Pittosporum undulatum (Native Daphne) and a Chorisia speciosa (Floss Silk Tree). These two trees are not trees to which Part 2A applies as they are individual specimens (see Johnston v Angus [2012] NSWLEC 192 at [43]). The trees are growing at the rear of the respondents' property along the common side boundary between the parties' properties, between the rear of the respondents' garage and their back fence. The trees are to the northeast of the applicant's dwelling. Almost all of the trees are in excess of 2.5m tall.
I am satisfied that the conifers are trees to which Part 2A of the Trees Act applies.
The key test in applications made under Part 2A is found in s 14E(2) which 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.
The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
[2]
Sunlight
The applicant contends that the trees block sunlight to three windows at the rear of his dwelling. In his application claim form he states: "From around midday sunlight starts to come around trees". By this (as confirmed on site), the applicant means that the trees block morning sunlight.
The three nominated windows, from southeast to northwest across the rear of the applicant's dwelling, are: W1and W2 - open plan family/dining area; and W3 - third 'bedroom' set up as a study. All windows face north-east.
The hearing was held on site on a sunny morning on 4 August 2017 (between the winter solstice and the spring equinox). At 9.45am it was clear that W1 receives full sunlight at this time of the day and year. The only part of the rear of the dwelling over which any of the conifers cast a shadow was the far south-eastern section of the wall to the east of the window. The other windows were in part-shade due to shading from three large Eucalypts growing at the rear of the applicant's property.
In order to determine whether there is a severe obstruction of sunlight to a window of a dwelling, the Court has considered the usual minimum development controls and standards for sunlight (solar amenity) required by most councils for new developments. This is typically at least three hours of sunlight to living room windows between 9.00 am and 3.00 pm on 21 June (winter solstice). While the respondents' trees might obstruct some sunlight to one or more of the windows on mid-winter mornings, it would appear from the location of the trees relative to the windows that they would not obstruct sunlight later in the day and the nominated windows would achieve the usual minimum hours of sunlight (absent the applicant's own trees).
The applicant has not provided any evidence, such as shadow diagrams or time and date stamped photographs, to prove that any of the respondents' trees are currently severely obstructing sunlight to the three nominated windows. As such I cannot reach the requisite level of satisfaction required by s 14E(2)(a)(i) and thus this element of the application is dismissed.
[3]
Views
The applicant contends that the trees have blocked any and all of his views of the valley to the northeast.
The applicant has not provided any evidence of the views available to him prior to the planting of the trees.
In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A of the Trees Act. The first step considers the nature of the view - whether the view is of iconic structures, water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The second step considers the location from which the view is seen - across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. The third step considers the use of the rooms from which the views may be affected - views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating.
The Court has also considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state:
26 However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
The view in question would be categorised as a district view of a treed residential area. It is across a side boundary from sitting and standing positions. Two of the viewing locations (W1 and W2) are from living areas, the third is a bedroom (W3) used as a study with the desk placed so that anyone using the desk would have their back to the view.
The primary view from the rear of the applicant's property is a car yard. While the view said to be obstructed is probably a more pleasant view than a car yard, it is across a side boundary. Absent any photographic evidence, I obtained an impression of what might be obstructed by the trees the subject of the application by standing on a railing on the applicant's side deck. The view in question is a filtered view through other trees growing along the respondents' rear boundary, including more conifers and tall Floss Silk Trees and a Jacaranda, as well as other trees on other properties beyond.
When the totality of the view is considered, on balance I am not satisfied that the obstruction is severe, and if I am wrong in this finding, on balance, given the other obstructions and the nature of the view, I am not satisfied that the applicant's desire to remove the trees is warranted or that any orders should be made for any interference with the trees on the basis of view loss.
Therefore as s 14E(2) is not satisfied, this element of the application is dismissed.
[4]
Other matters
During the site inspection the applicant repeatedly stated that while the trees obstructed views and sunlight, the real issue was that the respondents had planted the trees too close to the fence, which in his opinion was wrong, and that the trees would continue to grow in height and width and thus somehow cause problems for the applicant.
The Class 2 Application filed in the Land and Environment Court by the applicant is pursuant to s 14B Part 2A only. There is no Part 2 application and claim form. While the applicant might be concerned about future problems with the trees, as the application before the Court is limited to Part 2A, my consideration is similarly limited to the jurisdictional tests under that Part of the Trees Act.
[5]
Conclusions and orders
Having found that s 14E(2) is not satisfied for either sunlight or views, the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 04 August 2017