Schou v Gonsalves

Submissions 10The applicant contends that trees on both sides of the driveway block sunlight to two downstairs windows (W3 and W4). The windows face east. She was unable to state exactly how many hours that sunlight is blocked, but said that in winter the sun would normally come in through the windows from 7:30 a.m. but now, due to the trees, does not come in until approximately 9:30 a.m. 11The applicant stated that the dining room (W4) and the laundry (W3) are both cold rooms due to the blocking of sunlight. She stated that she uses the dining room in the mornings. She stated that W10, a second bedroom upstairs, could experience an equivalent loss of sunlight should the trees continue to grow. 12The applicant also contends that some of the trees block views from the main bedroom upstairs (W6 and W7) and from the ensuite to that bedroom (W8 and W9). During inspection from the second upstairs bedroom (W10) she stated that the trees were not severely obstructing the view at present but would do so in future as they grew larger. 13The applicant clarified the orders sought, stating that she would like all trees that are obstructing sunlight or views to be pruned and maintained at a height of two metres above the top of the fence along the common boundary. 14The respondent submitted that the trees had been planted to achieve privacy and to provide a buffer to noise from the newly constructed freeway to the north. She contends that the tree species was chosen in consultation with the applicant (although the applicant denies this) and that native trees, namely Eucalypts, would not be suitable in a bush fire zone such as this. 15The respondent stated that the applicant's dwelling is significantly higher than her own and this creates overlooking and privacy issues, especially as, without the trees, there is a line of sight between her main bedroom at the front of the house and the applicant's bedroom and bathroom. She is also concerned that the applicant can see in to other windows at the front of her house.

Jurisdictional issues 16The application has been made pursuant to s 14B Part 2A of the Act. We are satisfied that the trees are in groups of two or more, that they have been planted so as to form a hedge, and that they rise to a height of at least 2.5 metres. Therefore, according to s 14A(1) this part of the Act applies to the trees. The two rows of Leyland Cypress trees along the driveway are two distinct hedges. 17The Court must not make any orders regarding the trees unless it satisfied, according to s14E(2) that: (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. 18We will consider the two issues, obstruction of sunlight and obstruction of views, for each window in turn.

Obstruction of sunlight 19It is evident that for some time in the morning, perhaps for two to three hours, several of the trees block sunlight to the two windows W3 and W4. Even if we were to take the applicant's submission at its highest and regard this as a severe obstruction according to s 14E(2)(a)(i), we must still, according to s 14E(2)(b), balance the severity of this, and the actions required for its removal, remedy or restraint, with other matters that may be affected by interfering with the trees. Such matters are listed in s 14F. 20In our view, the relevant matters under s 14F here are: (a)The trees are wholly located on the respondents' property. One row of trees is located close to the common boundary with the applicant's property; the other row is on the opposite side of the driveway. The trees were planted in that location to provide a visual screen. (b)The trees were planted after the construction of the applicant's dwelling; (c)The trees have grown to their current height during the period that the applicant has owned her property; (h) The trees contribute to the scenic value of the land on which they are growing - they soften the landscape and provide visual screening between built forms; (k) The species is tolerant of pruning; (l) The respondents' position is that the trees are essential to their privacy given the size and position of the applicant's dwelling and the sightlines between bedrooms in the two dwellings; similarly, the respondents contend that the trees help reduce traffic noise from the nearby bypass; (m) There is no other obstruction to sunlight to these two windows; (o) The trees obstruct morning sunlight to the windows for a period of perhaps two to three hours; (p) The trees are evergreen; (r) The part of the dwelling to which sunlight is obstructed includes two separate areas: W3 is a laundry door; W4 is the dining room which is part of a large open plan living room. 21With respect to W3, as this is a service area rather than a living area, obstruction of sunlight to this glass door is unlikely to significantly affect the applicant as this is not a habitable area and it is unlikely that any significant amount of time is spent in this room. Even if the obstruction is regarded as significant, it is our view that any benefits to be gained by pruning the trees would be so minor as to not warrant interfering with the trees. 22With respect to W4, the size of the window, and the hours during which winter sun may enter, mean that obstruction of sunlight is unlikely to significantly affect passive heating during the winter months. The dining room is most likely to be used later in the day when sunlight does not reach the window, regardless of trees. As the sun moves in the sky this window will inevitably not receive direct sunlight however the front north facing window in the other part of the open plan living room may. Again, it is our view that any benefits to be gained by pruning the trees would be so minor as to not warrant interfering with the trees. 23The applicant is concerned about the potential of trees to obstruct sunlight to the upstairs window W10. However, the wording of s 14E(2)(a)(i) is clearly in the present tense: "...the trees concerned are severely obstructing sunlight to a window..." The Court can therefore only make orders regarding trees that are blocking sunlight in the present, not in the future. 24Having considered obstruction of sunlight to windows, we are not satisfied that the severity and nature of the obstruction warrants any action that would be required to remove the obstruction. Therefore, according to s 14E(2)(b), the Court must not make any orders regarding the trees with regard to the obstruction of sunlight.

Obstruction of views 25The main view from the main bedroom upstairs is out the south-facing windows. The main viewing point is from an area standing in the central part of the eastern half of the room. (We noted that, considering the height of the windows and the height of the bed, there was unlikely to be any significant loss of view from the bed.) 26Given the position of the dwelling on the hill, and the angle of the windows on the southern side of the room, the main view is to the south and southwest, across the tops of trees to the Woronora River at the bottom of the valley, and beyond to Woronora Heights. Looking to the east through W6 and W7, the tops of several of the taller Leyland Cypress trees along this section of the hedge obstruct a smaller view of the river further to the east. This bit of the river can be seen through W8 when standing near the toilet and is partially obstructed from W9. 27Considering the panoramic view to the south from the main bedroom, including a larger section of the Woronora River, we do not consider the obstruction of a smaller section of the river to the east, from the same standing position as the main view can be enjoyed, as a severe obstruction. Accordingly, as stated in s 14E(2)(a)(ii) of the Act, we must not make any orders regarding the view obstruction from W6 and W7 as we are not satisfied as to its severity. 28The section of the Woronora River to the east can still be seen through W8 from a standing position near the toilet. We are not satisfied that any obstruction here is severe and so we must not make orders regarding this view. 29We do not regard the view loss from W9, in the ensuite, as severe. However, even if we were convinced otherwise and were satisfied according to s 14E(2)(a)(ii), we must still consider the matters in s 14F, and relevenlaty s 14F(r): the part of the dwelling from which a view is obstructed. As this is a bathroom, and not a living area, it is likely that the total number of hours spent here is relatively less than in the dwelling's living areas which are downstairs. Any benefits gained by pruning the trees would be relatively minor and do not, at present, warrant interference with the trees. 30There is little or no obstruction of views from W10. The applicant expressed concern that the view would be blocked if the trees grow any larger. However, the wording of s 14E(2)(a)(ii) is clearly in present tense: "...the trees concerned are severely obstructing a view..." The Court can therefore only make orders regarding trees that are blocking views in the present. 31Considering the obstruction of views from the windows described above, we are not satisfied that the severity and nature of the obstruction warrants any action that would be required to remove the obstruction. Therefore, according to s 14E(2)(b), the Court must not make any orders regarding the trees in regards to the obstruction of views.

Summary 32While we do not disagree that the trees obstruct sunlight to windows, or that they obstruct views from windows, we find that for most of the windows the extent of the obstruction could not be regarded as severe. Even if we were convinced otherwise, we cannot be satisfied that the severity and nature of any obstruction outweighs other matters to be considered under s 14F of the Act in such a way as to warrant interference with the trees. If the extent of any obstruction becomes severe in future, the applicant can re-apply to the Court.

Orders 33As a result of the foregoing, the Orders of the Court are: (1)The application is dismissed.

J Fakes Commissioner of the Court

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: 01 July 2011