The Part 2A applications
92Four of the five applications also sought orders for removal of the relevant portions of the row of She-oaks on the basis that, in each of those four instances, the trees were severely obstructing sunlight to one or more windows of the applicants' dwelling.
93Mr O'Donnell accepted that the trees constituted a hedge for each of the relevant terms required by s 14A (1)(a) and (b) of the Trees Act. From our observation during the course of the site inspection coupled with the condition of the development consent requiring the planting of these trees, we are satisfied that that concession was appropriate and that the relevant jurisdictional tests have been satisfied concerning the trees.
94Mr O'Donnell, however, submitted that we were not in a position to contemplate making any orders under Part 2A because of the inadequacy of the information that was available to us. He also submitted that, if we did not accept that proposition, we should also accept the uncontradicted expert evidence of Mr Taylor that removal of sections of the row of trees in the fashion contemplated by the applications would create risks of tree failure due to wind throw in those sections of the row of trees that would remain. Finally, he submitted that the absence of other applications, from a significantly larger number of property owners adjacent to the boundary with the cemetery, should be taken as inferring that they did not share the concerns of the applicants in these proceedings.
95Whilst the applicants themselves asserted that there had been community discussions and a petition presented to the cemetery owners from a much larger group of property owners and that the cost and trouble of commencing proceedings was the reason why there were not more applications being dealt with by us, it is unnecessary for us to deal with these competing positions in any detail.
96When questioned, Mr O'Donnell disavowed any suggestion that we were being asked to draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference from the absence of evidence from other potentially affected landholders in support of these applicants. It is trite to say that absence of evidence is not evidence of absence. Whether or not the other residents are supportive, neutral or opposed to these applications is a matter of irrelevance to us (apart from our needing to consider Mr Taylor's arboricultural conclusion concerning the opening up of gaps in the row of trees - if we were to get that far, which we do not need to do).
97Although we both well understand the dynamics of solar access issues as at the winter solstice (that being the time when, in planning terms, such matters are conventionally considered) there is a proper evidentiary process necessary to be followed to enable us to reach a valid conclusions on this element of the four applications based on Part 2A.
98First, we observe that each of the four applicants seeking orders on these grounds identified the windows that provided the basis for these claims and endeavoured, as best they were able to, to quantify the time and duration of the solar access of which they were deprived and to identify those trees that were causing that impact on the sunlight otherwise available to their windows.
99In several instances, the shading by trees was said to be to windows located beneath wide metal awnings in which there were translucent light panels. In another instance, the blockage of sunlight was also said to be to photovoltaic solar panels installed on a roof.
100In the first instance, the obstruction to the light reaching a window through such a light panel in an awning is not sunlight in the sense that we consider the expression is used in the legislation - namely direct sunlight. Whilst it might be obstruction of natural light, it is not obstruction of sunlight and therefore beyond the Court's jurisdiction. If we are wrong in this, the width and nature of the awnings are such that these cause significant shading of those windows, and as a matter of discretion arising from consideration of s 14E(2)(b) and therefore s 14F(m), no orders would be made for any interference with the trees on this basis.
101With respect to the solar panels, it has been held, in the past (see Hendry), that solar panels are not windows for the purposes of the legislation and we adopt that position in these proceedings. As a consequence, to the extent that any of these four applications under Part 2A are founded on either of those two premises, they are outside the jurisdiction of the Court.
102As we have earlier noted, these residences are located in a community title subdivision of comparatively recent development. The boundary next to which the residences are located runs in a roughly south-west to northeast direction.
103The street frontage of the McLucas' property is orientated to the north-east. The principal living areas, including four of the nominated windows/glass sliding doors (kitchen, living room and lounge room), face north-west, one living room window faces north, and the lounge room window at the front of the dwelling, adjoining the front door and garage faces north-east. An extensive awning covers the kitchen and living room windows. The McEwan's property is similarly orientated and the north-west facing kitchen and living room windows/ glass sliding doors are likewise covered by an extensive awning but are more constrained than those of the McLucas' property by the proximity of an adjoining property to the west.
104Mr O'Donnell submitted, as a further basis upon which we should reject the Part 2A applications, that any obstruction to sunlight, even if severe, would have been in existence or reasonably foreseeable at the time the relevant applicant(s) took occupation of the residence - the extent of the knowledge as opposed to foreseeability depending on the year when they did so.
105Mr O'Donnell's submission was that, in addition, those applicants who had recently moved into their properties, for example Mr and Ms McEwan, should be regarded as accepting the extent of the interruption to the sunlight of their windows - as the present blockage caused by the trees adjacent to their property would have been in existence at the time they entered into occupation of it.
106The other two residences, Ms Holborow's and the Ziesig's dwellings, for which Part 2A relief is sought, are located further to the north-east and have their frontage to an internal roadway running parallel to the boundary of the cemetery. As a consequence, the side walls of each of these properties face south-west and north-east whilst their rear walls, parallel to the boundary with the cemetery, faces to the north-west. In the Ziesig application, the only living room window/glass sliding door nominated faces north-east and is covered by an extensive awning.
107This community title subdivision has, as we have earlier remarked, been comparatively recently developed. As a consequence, the individual allotments are of the order of 400 or 450 m² whilst the dwellings erected on them are generally single level ones built with limited private open space at the rear; modest side setbacks to the boundary to their south-west with, and, in the case of several properties subject to these applications, covered outdoor living areas adjoining their principal indoor living areas.
108For the Holborow and Ziesig properties, in addition to any impact that the trees might have on their solar access, regard would also need to be had to the impact on such access caused by the physical structure of the dwellings immediately to the north-east in each instance. Absence of any evidence on the impact of the adjacent dwelling in each instance provides an additional inadequacy in the solar access impact information available for these two properties.
109Absent proper shadow diagrams (that would need to be in plan and elevation) on the basis of the presence of the trees and, hypothetically, without them, we are unable to assess whether or not there is a severe obstruction of sunlight caused by any of the trees (or any group of them) to any of the windows that might reasonably be expected to receive such sunlight at the time of the winter solstice.
110Absent of such evidence that might enable us to reach such a conclusion, there is no basis upon which we could turn to consider any of the other discretionary matters to which we are required to turn.
111If we are wrong on this point, there is another serious evidentiary deficiency that would preclude us from making orders were we to be satisfied about the nature and extent of any hypothetical severe obstruction of sunlight to one of more windows on any property. That arises from the absence of any basis upon which we could identify, accurately, which tree of group of the trees were, in fact, causing any obstruction.
112The plantings are a dense row containing, relevantly for each property, on our estimation, at least twenty trees. Although the applicants provided us with a hand drawn north point, it would not assist us identify, with any precision, what trees in the vicinity of those properties might be causing any overshadowing (if we were to conclude that such jurisdiction invoking overshadowing existed).
113Thus, even if we were satisfied that we have some proper evidentiary basis upon which to consider intervention under Part 2A (and we do not consider that we have, as earlier discussed), we do not have any basis upon which we could determine what orders might be appropriate.
114Taking these four applications at their highest, however, and assuming that the two areas of uncertainty concerning overshadowing did not require dismissal of these elements of those applications, we turn to consider Mr O'Donnell's submission of prior actual or imputed notice. As earlier noted, he submitted that, as a matter of discretion, we would not order intervention under Part 2A as we should conclude that, depending on when each of these four residences came to be occupied by the relevant applicants, they either ought to have reasonably expected that such should overshadowing should occur (as the trees were at least 6 or 7 m tall at the earliest relevant date) or, in the circumstances of much more recent occupation commencements, the trees were already obstructing the sunlight to the extent that was presently occurring.
115In considering this proposition, it is appropriate to have regard to the fact that the location of these trees and the species to be planted were specified as a condition of development consent by the council. Although it is self-evident, as evidenced by the present applications, that the species nomination by the council would, now, in hindsight, be considered to be inappropriate, the trees were nonetheless planted as required by the council.
116It is also equally obvious, we observe, that for that element of the plantings that have been subject to crown lifting (and, as a consequence, exposure of bare trunks to approximately 3 m above the ground with no branches or foliage below that height) the visual screening purpose sought to be served by this condition of consent - to provide a visual barrier between future development and the cemetery - has been substantially compromised for any residence adjacent to trees that have been crown lifted. Indeed, it is ironic that Part 2A of the Trees Act is designed to enable the rectification of obstruction to views from properties whilst, in this instance, a number of the residents complained to us about the present lack of obstruction that the hedge of crown lifted trees provided to the view of the cemetery grounds and associated structures.
117The crown lifting and thus removal of visual protection, has been undertaken on those trees that are in the vicinity of the McLucas and McEwan residences. Such crown lifting has not taken place with respect to the trees in the vicinity of the Holborow and Ziesig residences. There is a distinction arising from this, in our opinion.
118Although all the trees have been planted pursuant to a condition of development consent for the purposes earlier set out, those adjacent to the McLucas and McEwan residences no longer fulfil that particular function whilst those adjacent to the Holborow and Ziesig residences could be regarded as so doing. The consequence of this, in our opinion, is that although the development consent factor issue should continue to weigh in favour of the trees adjacent to the Holborow and Ziesig residences, it has less weight for those adjacent to the McLucas and McEwan residences.
119Mr and Ms McLucas commenced occupying their residence in 2006. Mr and Ms McEwan commenced occupying their residence in 2010. In each instance, we are satisfied that the extent of the obstruction of sunlight to any relevantly affected window, even taking the relevant applicants' case at its highest and assuming that such obstruction is severe, would have been an obstruction of which they were aware at the time they took up residence in their dwelling. As a consequence, although there is less reason to retain these trees for immediate visual amenity purposes, they nonetheless form an element of a continuous and attractive belt of vegetation separating the cemetery from the adjacent residential development. As a further consequence, on balance, if we were to get this far (which we are satisfied we do not) we would not order removal of the trees adjacent to the McLucas or McEwan residences as a matter of discretion.
120A modestly different position arises with respect to Ms Holborow's residence, in her case, she built the dwelling and is an original occupant of it. The photographic evidence that she has provided causes us to conclude that she should have known or, if she had made reasonable enquiries, would have been informed of the likely future growth and hedging effect of these trees.
121In the case of Mr and Ms Ziesig, they took up residence somewhat later, in 2005, when the trees adjacent to their rear boundary would have been somewhat taller than was the position for Ms Holborow and thus the state of knowledge that should be imputed to them is higher.
122In both these two instances, the trees continue to serve the screening purpose for which the development consent condition required that they be planted. Both these are powerful factors, even if the earlier hurdles to considering discretionary matters under Part 2A were regarded as overcome. As a consequence, as a matter of discretion, even if the necessary prerequisite knowledge were available to us (which, as we have earlier noted, repeatedly, it is not) we would not consider it appropriate to make orders requiring the removal of these trees.
123As we have concluded that there is no basis upon which we could or it would be appropriate to order removal of any of the trees on the basis of severe obstruction of sunlight to a window of a dwelling, it is unnecessary for us to consider the propositions advanced by Mr O'Donnell, founded on Mr Taylor's evidence, that ordering removal of the trees would, in itself, create unacceptable risks for other residents.