TREES [NEIGHBOURS] Hedgeobstruction of sunlight and viewsstarting point for assessment of impact
Judgment (4 paragraphs)
[1]
Judgment
COMMISSIONER: In 1991 the applicant purchased a large residential lot in Engadine on which there was a dwelling towards the front of the lot. In 2001 he lodged a development application with Sutherland Shire Council for subdivision of the lot into two. Development consent was granted in 2012. In February 2015 the council approved a development application for a new dwelling on the newly created lot. The location of the dwelling was constrained to some extent by a covenant restricting development away from the steeper rear section of the lot and by other council requirements. The approved dwelling was constructed between 2015 and 2016.
Growing at the rear of the respondent's equally large lot are many trees. The trees the subject of the application are four Cupressus sp (Cypress) growing in a row along the common side boundary fence and now opposite the applicant's newly constructed dwelling. The trees are to the northwest of the dwelling. Other nearby trees include several Melaleuca linariifolia (Snow in Summer) to the east of the Cypress trees along the boundary, a row of Cupressus macrocarpa 'Brunniana' (Brunnings Golden Cypress) planted across the respondent's block and then other assorted trees including a Lillypilly further to the east along the fence. The respondent states that the Cypress trees were planted by her late husband some 40 years ago. They are estimated by the applicant to be 14m tall.
The applicant contends that the Cypress trees severely obstruct sunlight to windows of his new dwelling and views from his dwelling. He has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the trees and their replacement with Melia azederach (White Cedar) - a deciduous native tree which the applicant contends is a less flammable species than the Cypress.
The respondent does not want to remove the trees as she values them for the privacy they afford her property. She has no objections to the applicant pruning any overhanging branches back to the fence line.
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 of these is whether the trees the subjects of the application are trees to which the Part applies. With the horticultural and arboricultural expertise I bring to the Court, I am satisfied that the trees are planted so as to form a hedge, whether two hedges or one, and meet the criteria in s 14A(1).
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.
[2]
Views
The applicant contends that the trees block all views to the northwest from the nominated northwest facing windows of the downstairs living room (W1/V1) and the upstairs living area (W2/V2). The applicant is unable to state what the views may be of other than sky but suggests they may be of distant mountains, the horizon and other trees in the council reserve.
While the trees the subject of the application do severely block the direct views to the northwest from the nominated windows I am dismissing this element of the application for the following reasons.
As discussed in McDougall v Philip [2011] NSWLEC 1280, 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 [or in this case a view] which had not existed at the time of the purchase.
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'].
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 a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land. While I accept that the applicant purchased the land in 1991, there was no dwelling on that part of the land now in question.
Therefore, in my opinion, the starting point for any obstruction of views from the applicant's dwelling as a consequence of trees on the respondent's property to which the Part applies must start from the views available when the dwelling was constructed. Prior to this there was no dwelling and therefore no view available from it. As the dwelling was only completed this year, there is no perceptible change in the obstruction of view. I also note that the principal open plan ground floor living/dining/kitchen area is oriented to take advantage of extensive and uninterrupted views of bushland.
[3]
Sunlight
The applicant contends that the four Cypress trees block direct sunlight to W1 for up to 5 hours in mid-winter and 4 hours at the spring and autumn equinoxes and to W2 for 7 hours in mid-winter and 6 hours at the equinoxes.
The applicant, who is a landscape designer, has prepared shadow diagrams to demonstrate the impact of the Cypress, and of the other row of Brunnings Cypress, on sunlight to the nominated windows of his dwelling. The windows are W1 the northwest facing living room window and W2 the similarly facing upstairs secondary living room window. I note that the shadow diagrams are noted as 'not to scale' and while the location of the subject trees is surveyed, it is not clear as to whether the height of those and other trees has been accurately surveyed. Further, the shadow diagrams do not include the impact of at least three other tall trees between the Brunnings Cypress and the subject trees, other trees to the northwest or self-shading by eaves.
Notwithstanding these limitations, the shadow diagrams drawn by the applicant show the Cypress trees block sunlight to the whole of W1 from 10.00am to 2.00pm in mid-winter with partial shading by T1 at 9.00 am and 3.00pm. The Brunnings Cypress obstruct sunlight at 9.00am and 10.00 am. W2 is slightly obstructed by the Cypress at 10.00am, partially obstructed at 11.00am and fully obstructed from 12.00pm until 3.00pm. The Brunnings Cypress partially or fully obstruct W2 from 9.00am until 11.00am. Photographs included in the supplementary material tendered by the applicant taken close to the spring equinox show W2 shaded by the eaves from 9.00am until 11.00am and afternoon shading by the cypress. W1 appears to have some to full sunlight from about 1.30 pm at that time of the year.
In putting the applicant's case at its highest, I am prepared to accept that the four Cypress trees do severely obstruct sunlight to the nominated windows and consider s 14E(2)(a)(i) sufficiently satisfied. This requires consideration of the balancing of interests inherent in s 14E(2)(b) and subsequently matters in s 14F.
The applicant contends that the site is zoned residential and thus a dwelling is entitled to be constructed on the land however the location of the dwelling on the site was constrained. The applicant maintains that he has set the house back 4.8m from the north-western boundary specifically to take advantage of the northerly aspect. In his opinion, the trees unreasonably obstruct sunlight to living rooms of his dwelling. He also considers that pruning them to a height of about 3m, which would then provide more sunlight to those windows, would have a detrimental and potentially fatal impact on the trees, given their age, species and the extensive loss of foliage that would result. He maintains that replacement with his suggested species, or indeed a native Callitris sp. which could be more readily maintained at a height that would retain the respondent's privacy, would be the best option.
I concur with the applicant that such radical pruning would not be viable.
However, for essentially the same reasons given for the obstruction of views, I am not minded to make the orders the applicant seeks. While I accept that the position of the house on the site is somewhat limited, especially given the east-west orientation of the block, the trees have been a prominent feature of the landscape since the time the applicant purchased the original lot and certainly from the time of the sub-division application and the subsequent development application to construct a dwelling. As a landscape designer he would have been aware of the growth habits of this species. I consider the principle in the quotation regarding Recommendation 9 of the Review of the Trees Act in [11] above is applicable to the construction of a new dwelling near an existing hedge.
Documents in the application claim form show that the applicant formally approached the respondent in January 2015 asking that the trees be removed as they were a bushfire risk and that it would be easier and cheaper to do because the adjoining site was vacant. [While bushfire issues are essentially irrelevant to the Trees Act, I note that the respondent has included a letter from the Rural Fire Service stating that following an inspection, the land does not present a significant bush fire threat.] The issue of sunlight is not raised in any of the earlier correspondence included in the application claim form; it is only raised in letters to the applicant after the date the application and claim form were filed with the Court.
Given the existing constraints on both the applicant's lot and the respondent's property, a more skilful design or room layout may have alleviated some of the solar access issues. It is also clear from the shadow diagrams that other trees on the respondent's property obstruct sunlight to the nominated windows and other trees have not been included. I also note that the trees now have more of a purpose in providing privacy to the respondent's property, as there is now a two-storey dwelling where there was once vacant land. Pruning the side branches may improve ambient light however these are not orders I can make; the council may be the consent authority for any such pruning.
Having considered the relevant matters, I find s 14E(2)(b) not satisfied in the applicant's favour, and no orders will be made for any intervention with any of the trees on the basis of obstruction of sunlight.
Therefore, in conclusion, the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
[4]
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Decision last updated: 16 December 2016