Perryman v Yemma

Requirements regarding expert evidence 5Mr Newhouse objected to certain material that Ms Freedman presented during the hearing. I explained that I would give all material the weight it deserves, depending on whether I consider it to be evidence or part of submissions. 6I note here that the report by Mr Salman, relied upon heavily by the respondent, does not satisfy the Court's requirements regarding expert evidence. The report's author writes that the report is prepared in accordance with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, and agrees to be bound by their provisions. However if he has read the schedule he has not complied with it. His name only appears to have been added in pen to the cover page; otherwise his name and qualifications are missing from the report. I have no idea if he is an architect, what his qualifications are or what expertise he has to make his assessment and to form his opinions.

The situation 7The parties agree that the six cypress trees are planted so as to form a hedge and that they are more than 2.5 metres tall. The parties do not agree on the extent to which the six trees obstruct sunlight and views. They also disagree on the size of the trees in 2009 and the degree of obstruction at that time. 8The trees are approximately five metres tall. They are planted in a line parallel to the common boundary, some 1.5 metres from the boundary. They have dense, interlocking crowns so that their foliage forms a screen through which little light passes. 9Ms Perryman's lounge room was dim at 1:30 p.m. today. Notwithstanding that today is a cloudy and rainy winter's day, the room was dimmer than average. Ms Freedman contends that this is due to the trees. Mr Newhouse says other features obstruct the light, with only a minor contribution from the trees. 10Below I outline the parties' submissions as I understand them.

The applicant's submissions 11Ms Freedman says the trees cause a severe obstruction of sunlight. She says the lounge room and study (second bedroom) windows receive approximately one hour less of sunlight than they would in the absence of the hedges. 12Ms Freedman says that the trees were much smaller when her mother moved in. She says trees 4-6 at the southern end of the row were medium in size, perhaps three metres tall, visible above the 1.8-metre timber boundary fence but not obstructing sunlight or views. She says tree 4 was straggly and thin. She says trees 1-3 were barely visible above the fence, if at all. She suggests trees 1-3 may have been planted later than trees 4-6. 13In 2011, as the trees grew, Ms Perryman wrote to the then owners of the respondent's property asking for the trees to be pruned. She says the trees were pruned to 2.5 metres. The Yemmas purchased their property in September 2011. Ms Perryman asked them to prune the trees at the same height but they would not, instead allowing them to grow to their current height. 14Ms Freedman indicated the trees in photographs taken for the 2009 marketing campaign of her mother's unit. She says these support her claims. 15Ms Freedman says the trees not only obstruct direct sunlight but also absorb much of the available ambient light. 16Ms Freedman says the trees also obstruct a view, including the view across the Yemmas' garden to more distant trees and the district beyond. 17Ms Freedman says Leyland Cypress are not appropriate, as some councils have banned their planting and others advise against them. 18Ms Freedman says the unit complex that includes her mother's unit was designed by an architect to take advantage of the aspect. She says the Development Application consent required certain features to prevent overlooking into the neighbouring property, in the absence of the hedge, so privacy is not an issue. She says the hedge is not required for privacy. 19Ms Freedman says Mr Salman's diagrams are not a true representation of the situation past or present. She says the hedge was not as high as he represents it to be in 2009. 20Ms Freedman says that although the Yemmas might prune the trees regularly, the most recent pruning was the first time they pruned them back from the fence.

The respondent's submissions 21Mr Newhouse says the trees do not cause a severe obstruction of sunlight or views. He relies on a report with shadow diagrams prepared by Mr Richard Salman. He says the obstruction of sunlight to Ms Perryman's windows is mainly caused by other features, notably the broad eaves over her outdoor area, the fence and shrubs along her boundary, the Yemmas' dwelling, a large Norfolk Island Pine at the northern end of the hedge and other large trees including gum trees further to the west. 22Mr Newhouse contends that the trees were already well established in 2009 and says that photographs from the time show this to be the case. He argues that the obstruction, if severe, has not become so during the time of Ms Perryman's occupancy of the dwelling. 23Relying on Mr Salman's report Mr Newhouse says the trees could now only contribute to a further 40 cm of sunlight obstruction onto Ms Perryman's lounge room window compared to the obstruction in 2009. He says this would only account for at most an hour of sunlight obstruction during winter. 24Mr Newhouse refers to Mr Salman's opinion that the lounge window would receive less than three hours of direct sunlight on the winter solstice even if the trees were removed, and that their removal would restore at most one hour of sunlight. 25Mr Newhouse says the Trees Act only considers direct sunlight, not ambient light. 26Mr Newhouse says the trees provide privacy for the Yemmas in their rear garden. He says if the trees were shorter there would be overlooking issues from the unit above Ms Perryman's. He says the Yemmas prune the trees every six months to maintain them at their current height. He says the trees are approximately six metres from the lounge window and this setback would allow light to enter if it were otherwise available. 27Mr Newhouse says that Ms Perryman knew at the time she bought her property that there were other obstructions, including all those mentioned above as well as a large Casuarina on her side of the fence between her property and the hedge. 28Mr Newhouse argues that any view Ms Perryman may have had previously was only a district view. He suggests that such views are not considered to be valuable, referring to the Court's previous findings in hedge cases, such as Ball v Bahramali & anor [2010] NSWLEC 1334. He says there are no iconic views here, suggesting it is only iconic views that would warrant orders for interfering with trees. 29Mr Newhouse says the task of maintaining the hedge at a height such as 2.5 metres would be onerous for the Yemmas. 30Mr Newhouse suggested that the trees were not on land adjoining the applicant's property, as a section of common property belonging to her body corporate separated her dwelling from the boundary fence. This issue has been dealt with before by the Court (for instance, see Atkinson v Matherson [2011] NSWLEC 1121) and requires no further consideration. For the purpose of this matter the respondent's land is considered to adjoin the applicant's property.

Findings 31As can happen within a legislative framework, what might appear reasonable in the circumstances may not necessarily fall within the jurisdiction of the relevant Act. Such is the case here. 32I accept the evidence and submissions regarding the obstruction put forward by Mr Newhouse for the respondent, but not without careful assessment. The most telling evidence was in the photographs from the 2009 marketing campaign of Ms Perryman's dwelling, particularly the photograph taken from the southern end of her garden. I positioned myself so that I was looking from the same point of origin as the photographer, at the same angle. The three trees at the southern end of the hedge, trees 4-6, were roughly the same size then as they are now. The three trees to the north of this were smaller. This is more likely to be as a result of competition with the mature Norfolk Island Pine at the north end of the hedge, rather than a later planting date. 33Photos taken from within Ms Perryman's dwelling prior to her occupation also show trees 4-6 to be of a similar height to the present. 34I accept that trees 1-3 were smaller then than they are now. The neighbouring roof could be seen from the southern end of the garden, but is now obscured. In 2009 there was more light and there was some narrow view beyond the hedge. 35Pruning the tops of all six trees has also contributed to them becoming denser in the interim. 36However I am convinced from the shadow diagrams and my own observations from within Ms Perryman's property that her access to both views and sunlight were limited in 2009 by the wide eaves extending out from her lounge room and study and by existing trees including those in the southern half of the hedge as well as more distant trees. The windows face west and can only receive sun during the afternoon. The glass doors in the lounge room are only about two metres high. Beyond them the relatively low eaves extend for some 2.65 metres. Eaves extend for approximately 3.19 metres beyond the study windows. In winter, direct sunlight is obstructed by these other features as well as the trees. 37Regarding views, I accept that a narrow view existed, but the photos show that this was available only from the northern part of the lounge room and the northern part of the outdoor area, rather then the more central zones of these areas. The view has been lost. I do not accept Mr Newhouse's suggestion that the view, being a district view without iconic features, is of little value. A suburban view, if that is what is available, may be the valuable view to a property owner. Views are not just for those who live by the water. However the extent of the view here appears to have been very limited in 2009, so although it is now entirely lost I cannot accept that the view loss is severe. 38I find that, even if I accept that the trees cause a severe obstruction of either sunlight to Ms Perryman's windows or views from her dwelling, the obstruction largely existed when she purchased her property. The Trees Act gives an applicant the means by which to restore sunlight or a view previously available to them rather than to gain access to sunlight or a view that was not present while they lived there. This was discussed in Bowden & anor v Grayson & anor [2013] NSWLEC 1161. There has been some loss of Ms Perryman's solar access and access to a view since 2009, but the extent of the loss during that time, rather than the overall obstruction, cannot be regarded as severe, as required by the Trees Act. As a consequence, the application will be dismissed. 39Despite my findings, I note that Ms Perryman has limited access to light and outlook. Studies have shown that outlook to the landscape improves people's wellbeing. Ms Perryman has lost her husband in the time she has lived at her property. The Yemmas' hedge creates a solid wall that blocks Ms Perryman's outlook completely and contributes to low light levels in her dwelling. Although they argue for their privacy, I agree with Ms Freedman's submissions that a lower hedge would have little impact on the Yemmas' privacy. Living as neighbours will often require some give-and-take. At present, the situation regarding the hedge only satisfies one of the parties here today.

Orders 40Having considered all the relevant issues, and despite my sympathy for Ms Perryman's situation, I make the following orders. (1)The application is dismissed.

D Galwey Acting Commissioner of the Court 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: 28 August 2014