Miletta v Ngo

Part 2A applies to the trees

1. A row of Viburnum odoratissimum (Hedge 1) grows along the common boundary between the applicant's driveway and the boundary fence. They form a continuous canopy along the boundary - it is not disputed that they are planted so as to form a hedge. The hedge is shortest near the applicant's front boundary, where it is approximately 1.5 metres tall, becoming taller away from the street as the land slopes downward, reaching approximately 3 metres part way along and maintaining this height to its south-western end. Where two or more trees in a hedge are taller than 2.5 metres, the Court takes the approach that the minimum height requirement at s 14A is satisfied for the hedge in its entirety: see Wisdom v Payn [2011] NSWLEC 1012 at [66].
2. A row of Murraya paniculata (Hedge 2) grows along the common boundary towards the rear of the respondent's property. A section of it then continues away from, and perpendicular to, the boundary. All trees in Hedge 2 are 3 metres or more tall.
3. It follows that Pt 2A of the Trees Act applies to the trees in Hedges 1 and 2 (s 14A(1)).

Reasonable effort to reach agreement

1. The applicants have spoken with the respondent several times in recent years, asking for the trees to be reduced in height. The respondent does not wish to do so. I am satisfied the applicants made a reasonable effort to reach agreement.

Obstruction of sunlight

1. The applicants have undertaken works to their property over recent years, including changes to the main dwelling and the addition of a second dwelling (the cottage), with a shed between the two dwellings. All three structures are only a metre or less from the common boundary. The applicants claim the hedges severely obstruct sunlight as follows:

• Hedge 1 obstructs sunlight to windows of three bedrooms, the laundry and an ensuite in the main dwelling;
• Hedge 2 obstructs sunlight to a window of the shed.

1. All of the above windows face southeast. The timber paling boundary fence is more than 2 metres above the applicants' ground level in places. Both hedges grow above the top of the fence, their foliage spreading across the boundary. The applicants provided no shadow diagrams. The respondent provided photographs showing sunlight on the applicants' wall at certain times of the day. Considering the dwelling's orientation, in the absence of the hedge sunlight would reach the windows for a limited period of the morning during summer, and for a shorter period of the morning during winter. Taking that as the sunlight that reaches these windows, it could be said that the trees severely obstruct sunlight to the windows. Therefore, I accept the applicants' claim regarding Hedge 1 and sunlight obstruction to windows of the main dwelling. Because the shed is not a dwelling, I do not accept their claim regarding Hedge 2 and sunlight obstruction: see s 14E(2)(a)(i) of the Trees Act.

Obstruction of a view

1. The applicants claim the hedges severely obstruct a view as follows:

• Hedge 1 severely obstructs a view from the windows of three bedrooms in the main dwelling;
• Hedge 2 severely obstructs a view from the cottage's living room sliding doors.

1. In the absence of the trees in Hedge 1, the main dwelling's three bedroom windows would have a limited view of sky above the nearby boundary fence. Taking this as a view, it could be said that the trees severely obstruct a view.
2. I stood at the cottage's living room doors, which, unlike the windows described above, are several metres away from the common boundary. Trees in Hedge 2 grow approximately 1 metre above the top of the fence, partially obscuring a view of neighbouring dwellings and their garden vegetation, with more distant vegetation and the sky remaining visible above. Considering the range of qualitative view loss terms from Tenacity Consulting v Waringah Council (2004) LGERA 23; [2004] NSWLEC 140 (negligible, minor, moderate, severe or devastating), the obstruction caused by Hedge 2 is minor, certainly not severe.

Consideration of other matters

1. Having found that Hedge 1 causes a severe obstruction of sunlight to three bedroom windows and laundry and ensuite windows of the applicants' main dwelling, and Hedge 1 causes a severe obstruction of a view from the three bedroom windows, I must consider the matters at s 14F of the Trees Act. Most relevant here is s 14F(b): (b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),
2. Before the applicants renovated their main dwelling, windows along its south-west-facing wall were of stained glass. While they could let light through, they had no view. They now notice the impact on view and sunlight caused by trees in Hedge 1. The applicants claimed that trees in Hedge 1 were once maintained at a lower height. The respondent submitted that if anything, they were once taller - now that his gardener is not allowed access to the applicants' roof (or any of their property), the trees are pruned from the respondents' driveway, from where a lower height is within reach. During the onsite hearing I observed, and pointed out to the applicants, that tree stems and branches near the top of the hedge were thicker than my arm, so had clearly been at this height for many years. Changes to the applicants' access to sunlight and views from their main dwelling have resulted from their renovations rather than any changes to the hedge.
3. The applicants provided a photograph from 2018 showing trees in Hedge 2 at fence height. They submitted that the trees have grown taller since the time they constructed their cottage. The respondent provided a photo (in Exhibit 1) showing trees in Hedge 1 well above fence height during construction of the applicants' cottage.
4. In McDougall v Philip [2011] NSWLEC 1280, Fakes C discussed at [20]-[24] the requirement that the applicant has lost access to views or sunlight previously enjoyed. For the reasons set out above, I find that, while trees in both hedges might obstruct sunlight and views, the applicants have not lost sunlight to windows or views from their dwelling that they previously enjoyed. This gives the Court no reason to make orders.

Orders

1. The Court orders: 1. The application is refused. 2. The exhibits are returned, except for exhibit A.

Amendments 23 February 2024 - The Court of its own motion pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule), correction is made to paragraph [14] to change the reference from Hedge 2 to Hedge 1. 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: 23 February 2024

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

(2) The Court must not make an order under this Part unless it is satisfied that:

(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.

1. A row of Viburnum odoratissimum (Hedge 1) grows along the common boundary between the applicant's driveway and the boundary fence. They form a continuous canopy along the boundary - it is not disputed that they are planted so as to form a hedge. The hedge is shortest near the applicant's front boundary, where it is approximately 1.5 metres tall, becoming taller away from the street as the land slopes downward, reaching approximately 3 metres part way along and maintaining this height to its south-western end. Where two or more trees in a hedge are taller than 2.5 metres, the Court takes the approach that the minimum height requirement at s 14A is satisfied for the hedge in its entirety: see Wisdom v Payn [2011] NSWLEC 1012 at [66].
2. A row of Murraya paniculata (Hedge 2) grows along the common boundary towards the rear of the respondent's property. A section of it then continues away from, and perpendicular to, the boundary. All trees in Hedge 2 are 3 metres or more tall.
3. It follows that Pt 2A of the Trees Act applies to the trees in Hedges 1 and 2 (s 14A(1)).

1. The applicants have spoken with the respondent several times in recent years, asking for the trees to be reduced in height. The respondent does not wish to do so. I am satisfied the applicants made a reasonable effort to reach agreement.

1. The applicants have undertaken works to their property over recent years, including changes to the main dwelling and the addition of a second dwelling (the cottage), with a shed between the two dwellings. All three structures are only a metre or less from the common boundary. The applicants claim the hedges severely obstruct sunlight as follows:
   • Hedge 1 obstructs sunlight to windows of three bedrooms, the laundry and an ensuite in the main dwelling;
   • Hedge 2 obstructs sunlight to a window of the shed.
2. All of the above windows face southeast. The timber paling boundary fence is more than 2 metres above the applicants' ground level in places. Both hedges grow above the top of the fence, their foliage spreading across the boundary. The applicants provided no shadow diagrams. The respondent provided photographs showing sunlight on the applicants' wall at certain times of the day. Considering the dwelling's orientation, in the absence of the hedge sunlight would reach the windows for a limited period of the morning during summer, and for a shorter period of the morning during winter. Taking that as the sunlight that reaches these windows, it could be said that the trees severely obstruct sunlight to the windows. Therefore, I accept the applicants' claim regarding Hedge 1 and sunlight obstruction to windows of the main dwelling. Because the shed is not a dwelling, I do not accept their claim regarding Hedge 2 and sunlight obstruction: see s 14E(2)(a)(i) of the Trees Act.

1. The applicants claim the hedges severely obstruct a view as follows:
   • Hedge 1 severely obstructs a view from the windows of three bedrooms in the main dwelling;
   • Hedge 2 severely obstructs a view from the cottage's living room sliding doors.
2. In the absence of the trees in Hedge 1, the main dwelling's three bedroom windows would have a limited view of sky above the nearby boundary fence. Taking this as a view, it could be said that the trees severely obstruct a view.
3. I stood at the cottage's living room doors, which, unlike the windows described above, are several metres away from the common boundary. Trees in Hedge 2 grow approximately 1 metre above the top of the fence, partially obscuring a view of neighbouring dwellings and their garden vegetation, with more distant vegetation and the sky remaining visible above. Considering the range of qualitative view loss terms from Tenacity Consulting v Waringah Council (2004) LGERA 23; [2004] NSWLEC 140 (negligible, minor, moderate, severe or devastating), the obstruction caused by Hedge 2 is minor, certainly not severe.

1. Having found that Hedge 1 causes a severe obstruction of sunlight to three bedroom windows and laundry and ensuite windows of the applicants' main dwelling, and Hedge 1 causes a severe obstruction of a view from the three bedroom windows, I must consider the matters at s 14F of the Trees Act. Most relevant here is s 14F(b):

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

1. Before the applicants renovated their main dwelling, windows along its south-west-facing wall were of stained glass. While they could let light through, they had no view. They now notice the impact on view and sunlight caused by trees in Hedge 1. The applicants claimed that trees in Hedge 1 were once maintained at a lower height. The respondent submitted that if anything, they were once taller - now that his gardener is not allowed access to the applicants' roof (or any of their property), the trees are pruned from the respondents' driveway, from where a lower height is within reach. During the onsite hearing I observed, and pointed out to the applicants, that tree stems and branches near the top of the hedge were thicker than my arm, so had clearly been at this height for many years. Changes to the applicants' access to sunlight and views from their main dwelling have resulted from their renovations rather than any changes to the hedge.
2. The applicants provided a photograph from 2018 showing trees in Hedge 2 at fence height. They submitted that the trees have grown taller since the time they constructed their cottage. The respondent provided a photo (in Exhibit 1) showing trees in Hedge 1 well above fence height during construction of the applicants' cottage.
3. In McDougall v Philip [2011] NSWLEC 1280, Fakes C discussed at [20]-[24] the requirement that the applicant has lost access to views or sunlight previously enjoyed. For the reasons set out above, I find that, while trees in both hedges might obstruct sunlight and views, the applicants have not lost sunlight to windows or views from their dwelling that they previously enjoyed. This gives the Court no reason to make orders.

(1) The application is refused.

(2) The exhibits are returned, except for exhibit A.

23 February 2024 - The Court of its own motion pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule), correction is made to paragraph [14] to change the reference from Hedge 2 to Hedge 1.