COMMISSIONER: In April 2015 the applicant purchased his West Pennant Hills property. Growing along the western boundary of the adjoining property was, and is, a row of Lillypillies estimated, by the applicant, to have been 6-8m at the time of purchase. In the application claim form, the trees are said to be currently 6-8m tall.
The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the respondents to:
1. Trim the trees to a maximum of 2.5 metres as per the definition in Section 2A of The Trees Act.
2. If it's not possible to trim the hedge without killing it, then to remove it and plant more suitable plants that do not grow more than 2.5 metres tall.
These orders are sought on the applicant's contention that the trees severely obstruct sunlight to an east-facing window, identified as W1. According to the application claim form:
No sunlight reaches W1 at all during the day, as from sunrise to midday the hedge obstructs the light, and as W1 faces East, there is obviously no sunlight after midday.
W1 is completely obstructed from any possible light by the hedge regardless of the time of year as the hedge is on the Eastern boundary between W1 and track of sun.
The respondents submit there is no factual basis for the applicant's contention, and for the reasons listed in their evidence, (Exhibit 1), oppose the proposed orders. In rebutting the applicant's case they have provided photographic evidence, a copy of the original sales brochure, downloaded images from SixMAPS and GoogleEarth™, and a DVD of the sun's path and shadow casting showing the worst case hedge height of 8m combined with the applicant's gazebo and the dividing fence; all of which they say shows sunlight reaching W1 at various times of the year but with obvious obstruction caused by shading from the applicant's gazebo. The respondents' evidence indicates that W1 faces north-east rather than east.
In applications under Part 2A, there are a number 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 which attain a height of at least 2.5m.
In relation to the applicant's proposed order (1) I note that it is a common misconception that 2.5m is the prescribed 'legal' limit to which hedges must be maintained. This is not the case. The Trees Act simply specifies 2.5m as a height the trees in a 'hedge' must have reached in order to engage the Court's jurisdiction. That is, if the trees forming the hedge are less than 2.5m, they are not trees to which Part 2A applies and thus would fall beyond the Court's jurisdiction.
There is no dispute that the trees are trees to which Part 2A 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.
In order to be satisfied to the extent required by s 14E(2), there must be sufficient probative evidence of a severe obstruction of sunlight to the nominated window as a consequence of the trees to which the Part applies.
The applicant has not provided any evidence to support his claim. Undated photographs included in the application claim form simply show the trees in relation to parts of his property. There are no shadow diagrams or timed and dated photographs that indicate the alleged severe obstruction of sunlight to W1.
Having considered the evidence provided by the respondents, contrary to the applicant's statements in the application claim form (see [3] above), it is clear that W1 does receive sunlight at various times of the day throughout the year however the principle obstruction appears to be a large timber pergola/gazebo located directly adjacent to and over W1.
Even if there was evidence to show a severe obstruction of sunlight to W1 by the hedge, as a matter of discretion in accordance with s 14E(2)(b) and s 14F of the Trees Act, it is highly unlikely that any orders would be made for any intervention with the trees unless that evidence could clearly demonstrate that the severe obstruction was a consequence of the growth of the trees after the time the applicant purchased his property. This is discussed at length in McDougall v Philip [2011] NSWLEC 1280. Although that matter involved a view, the principle applies to sunlight. For completeness I have included the relevant paragraphs from that judgment.
20 The applicant seeks orders that would substantially increase the view from her dwelling, and in effect, create a view that was not available to the applicant when she moved in. This, in my opinion, is not why the Act was amended in August 2010. The amendment gave the Land & Environment Court a strictly limited new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling or views from a dwelling.
21 Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act.
The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies.
The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act.
The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review.
22 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006 " undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force - seehttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_tree_disputes_information]
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.
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.
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.
That the new procedure be drafted so as not to create a right to light or views.
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.
That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.
23 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.
24 The amended Act incorporates all of the recommendations made in the review.
Pertinent to this matter, are paragraphs [22(c)] and [23] of McDougall.
However, having determined that there is insufficient evidence to satisfy s 14E(2)(a)(i), the Court has no power to make any orders for any intervention with the trees.
As a consequence, the Order of the Court is:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 24 March 2017