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[2014] NSWLEC 1014
Land and Environment Court (NSW)
2014-01-31
Mr J, Preston CJ
Original judgment source is linked above.
Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Coffs Harbour against the owner of trees growing on an adjoining property. 2 The applicants contend that 12 trees growing along the northern boundary of the respondent's property severely obstruct sunlight to several windows of their dwelling and severely obstruct views from their dwelling. They have applied for orders to reduce the height of the trees to 2.5m with their subsequent maintenance at that height. 3In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied before the Court has the power under s 14D to make any orders it thinks fit. 4The first of these tests is satisfaction of s 14A(1)(a), which essentially asks the question - are the trees about which the application is made, planted so as to form a hedge? 5The applicants have listed 12 trees however they found it difficult to view and identify the species and accurately determine the number of trees. 6An inspection of the trees from the respondent's property during the hearing identified 10 trees. They are numbered from east to west. 7Tree 1 (T1) is a mature and well-established Corymbia citriodora (Lemon-scented Gum). Some four metres to the west is a very large and mature Callistemon viminalis (Bottlebrush) (T2). Tree 3 is an unknown species not planted by the respondent. Its position at the base of T2 suggests it is probably self-sown. Trees 4, 5 and 6 are Duranta erecta planted by the respondent in 2001. Tree 7 is a Lillypilly not planted by the respondent and growing near the base of T8, another large and mature Callistemon. Like T3, it is probable than T7 is also self-sown. Tree 9 is another Duranta planted by the respondent in 2001 between T9 and T10. Tree 10 is a mature Melaleuca sp., possibly M. bracteata. 8The Gum (T1), Callistemons (T2, T8) and Melaleuca (T10) were well established when the respondent purchased her property in 1995. 9In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants self-seeded or are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed. 10'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge". 11In this matter, after considering the species, likely origins, ages and arrangements of the ten trees I find that only trees 4, 5 and 6 comply with s 14A(1)(a). Trees 1, 2, 8, and 10 are widely spaced individual specimens. Tree 9, while planted at the same time as Trees 4, 5, and 6 is many metres away and reads as an individual plant. It is highly probable that trees 3 and 7 are self-seeded. 12As trees 4, 5 and 6 are in excess of 2.5m the Court can consider the next relevant question - is there a severe obstruction of sunlight or views as a consequence of trees 4, 5 and 6? 13Section 14E(2) 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.
Sunlight 14The three nominated windows all face south. W1 is the glass door/window of the first floor living room; W2 a first floor bedroom window; and W3 a ground floor bedroom glass door/window beneath W1. Both W1 and W3 have a structure above them. 15Taking into account the south-facing orientation of the windows and the height and relative location of trees 4, 5 and 6 I have determined that there cannot be a severe obstruction of sunlight to these windows as a consequence of those trees (the only trees to which the Part applies). 16By my estimates, absent any shadow diagrams to prove the point, W1 is only capable of receiving early morning and late afternoon sun over the summer months between the equinoxes. W2 is likely to receive more afternoon sun and less morning sun given its location within the dwelling. Early morning sun would be partly obstructed by vegetation on the adjoining property to the east. There would be a degree of self-shading to W1 and W3 because of the deck/roof above. It is possible that very minor shading may be caused by T1 and T10 however, these trees are beyond the scope of Part 2A and the impact is likely to be minor not severe. 17Therefore this element of the application is dismissed as s 14E(2)(a)(i) is not satisfied.
Views 18The views the applicants say they have lost are views generally to the south of Coffs Harbour City and the hills behind. These are usually described as distant district views. 19Although there are no photographs to illustrate the views available when the applicants purchased their property in 2007, it was agreed at the hearing that the three Duranta are severely obstructing that central portion of the view. While T9 creates a similar effect, that tree is beyond the Court's jurisdiction. 20As s 14E(2)(a)(ii) is met for trees 4, 5 and 6, s 14E(2)(b) must be satisfied in the applicants' favour before any orders can be made. In balancing the parties' needs, there are number of matters in s 14F to be taken into account. 21Trees 4, 5 and 6 are opposite V1, the viewing area from the living room and associated deck. Views from living areas are generally considered more important than views from bedrooms. 22The applicants have requested pruning the trees to 2.5m. In their application, the applicants estimate that trees 5 and 6 were about 3m tall in 2007 and tree 4 may have been 5m. As stated above, while there are no photographs taken at the time to verify these heights, the applicants must be taken at their word. Thus pruning to 2.5m would provide more views than were available to the applicants when they purchased their property. 23In McDougall v Philip [2011] NSWLEC 1280, the Court considered the reasonableness of such a request and the intent of the review of the Trees Act which subsequently incorporated Part 2A into it. One of the recommendations adopted by Parliament when it amended the Act was that "the new procedure be drafted so as not to create a right to light or views". In the dsicussion of that recommendation, the review considered: 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 Therefore it would be unreasonable to consider any pruning below 3m. 25The respondent is concerned about privacy given the elevated position of the applicants' property relative to her property. 26It was determined and discussed at the hearing that reducing the three Duranta to a height of 4m (measured from the respondent's property) could be tolerated by the plants and would be sufficient to retain the respondent's privacy and restore some of the applicants' view. When seen from V1, pruned to 4m, the tops of the trees would be approximately level with the ridgeline of the respondent's dwelling.
Conclusions and orders 27Having considered the jurisdictional tests and the circumstances of this application I make the following orders of the Court. (1)The application is upheld in part. (2)Within 30 days of the date of these orders the respondent is to prune, or have pruned on her behalf, and at her cost, the three Duranta erecta identified in this judgment and on site as trees 4, 5 and 6 to a height of 4m above ground. (3)If required, the applicants are to provide all reasonable access for this pruning on two working days notice. (4)The work in (2) is to be carried out annually each February for the life of the plants.
Judy Fakes 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: 03 February 2014
Singh & anor
Stanford