Smith v Ivanhoe

Framework

1. The Court cannot make orders under Pt 2A of the Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to a window of the Applicants' dwelling, or a severe obstruction of views from the Applicants' dwelling. If so satisfied, the Court must consider a range of matters such as privacy and other benefits that the bamboo provides.

Onsite hearing: observations and submissions

1. The hearing commenced with an inspection of the bamboo in the Respondent's rear yard, with both parties self-represented. The bamboo was growing in an uninterrupted row close to the common boundary and was between 4.7 and 6 m tall. The Respondent's land was about twice the width of the Applicants' land and the bamboo also extended along the common boundary between the Respondent and the Applicants' northern side neighbour.
2. The Court moved to the Applicants' land to assess the bamboo's impact on sunlight obstruction. This is discussed below at [18]-[28].

Jurisdictional requirements - Pt 2A

1. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. Section 14A(1) states: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
3. The Respondent's photographs showed the bamboo was planted with fairly even spacing in orderly rows. The bamboo had reached a height between 4.7 and 6 m since then, and therefore, s 14A(1) is satisfied.
4. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner … (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
5. Section 14E(1)(a) of the Act requires the Applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The Applicants reported approaching Ms Ivanhoe personally, leaving notes, and engaging in email communication, which provides satisfactory evidence to engage s 14E(1)(a). I am also satisfied that the Applicants gave notice of the application to the Respondent and Inner West Council, in accordance with s 14C. Therefore, s 14E(1)(b) of the Act was engaged.

Is the obstruction of sunlight severe?

1. The next step is to assess the severity of the obstruction of sunlight to a window of the Applicants' dwelling as a consequence of any or all of the trees in the hedge.
2. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied 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…
3. The Applicants nominated three windows for assessment. Both Window 1 (W1) and Window 2 (W2) faced west and thus could not receive direct morning sunlight. W1 was located in the kitchen/living room towards the rear of the dwelling, while W2 faced a narrow passage from a bedroom near the front of the dwelling. Window 3 (W3) was north facing from a bathroom/laundry, at the rear of the dwelling.
4. The Applicants' property had inherent constraints to sunlight access. The land parcel is relatively small and is about 2.2 m lower than the Respondent's land, on a moderately steep, east-facing slope. During winter afternoons, the easterly slope exacerbates the sun's low path across the northern sky. Therefore, the sun casts light from a relatively small angle above the horizontal and is thus prone to obstruction by vegetation or structures.
5. The change of level between the properties results in the 1.8 m tall solid common boundary fence having the impact on sunlight obstruction of a 4 m tall fence and the impact is exacerbated by the relatively close proximity of the Applicants' dwelling to the common boundary.
6. Ms Ivanhoe submitted a Shadow Study from Poole J and associates, Architects, dated 30 November 2023, which displayed shadows cast by various vegetation and structures at the winter solstice. The Shadow Study showed that shadows cast by the tree extended higher, wider, and further over the Applicants' land, than shadows by the bamboo. In the main, the tree's shading duplicated the bamboo's shading. The Respondent's photograph (H) showed the tree covered with foliage on 10 June 2023. Though usually considered a deciduous tree, many Celtis sinensis growing around Sydney have become semi-deciduous over recent decades. Ms Ivanhoe confirmed that the tree retained its foliage for most of the year.
7. The above average rainfall and excellent growing conditions since 2020 would likely have improved foliage retention through recent winters, and increased foliage density and the tree's rate of growth. Sunlight obstruction due to the tree has probably increased markedly due to the cumulative impact of these three factors.
8. Trees and shrubs growing in and overhanging from the Applicants' north side neighbour's backyard came close to W1. This vegetation would probably heavily obstruct sunlight to W1 in early afternoon in winter and the impact would be amplified by a dense Umbrella tree at the rear of the Respondent's yard, which is not part of the hedge. Ms Ivanhoe's photographs from 30 October 2023 show shadows from the Applicants' north side neighbour's vegetation extending about halfway across the rear yard. When the sun is much lower in the northern sky in winter, the north side neighbour's proximal vegetation would be the primary cause of sunlight obstruction to W1.
9. W2 faced a passage less than 1 m wide located between a wall of the Applicants' dwelling and the north side neighbour's parallel dwelling wall, on the boundary. Sunlight was restricted to W2 by a downward sloping awning protruding above the window and by the roof of the north side neighbour's dwelling, which (based on the Shadow Study) was about 560 mm higher than the Applicants' dwelling roof. A note on the Shadow Study said that no shadow is cast by bamboo onto W2 at the winter solstice. I would expect that bamboo may obstruct sunlight from W2 in summer, however, but not until late afternoon.
10. Ms Ivanhoe submitted a series of five photographs (A - E) showing changing patterns of shadows from sunlight obstruction on the Applicants' dwelling and backyard, at intervals of about one hour from midday to 4:18 pm on 30 October 2023. Photograph A showed W2 received no direct sunlight at midday, about 25% sunlight around 1pm (B), full sunlight exposure at 2pm (C), about 70% sunlight exposure around 3pm (D), and less than 10% by 4:18pm (E). Tellingly, all the shadow lines cast onto W2 were straight and were thus caused by edges of structures rather than vegetation.
11. In considering obstruction of sunlight, the Court has taken guidance from criteria used by council planners when assessing shadowing in development applications (DA). The usual threshold for sufficient natural sunlight is at least 3 hours sunlight to at least 50% of a living room window between 9am and 3pm. By implication, under the DA assessment criteria, sunlight access between 9am and 3pm is prioritised. Early morning or late afternoon sunlight access is more difficult to protect as there is more likelihood of obstruction than when the sun is higher in the sky. Therefore, even if the hedge obstructed sunlight to W2 during late afternoon in summer, this alone does not constitute a severe obstruction.
12. W3 incorporated two frosted bathroom/laundry windows, high on a wall at the rear of the dwelling. The tree, and the Applicants' north side neighbour's vegetation, would be the primary causes of sunlight obstruction to W3, depending on the time of year. Again, taking guidance from local government DA assessment criteria, natural light to living rooms is prioritised. Conversely, bathrooms and laundries are assigned the lowest priority for natural light. In such service rooms, supplementary artificial light is considered reasonable.
13. In summary, the Respondent's bamboo is not causing a severe obstruction to any of the Applicants' three nominated windows and therefore s 14E(2)(a)(i) of the Act has not been engaged. Consequently, there is no requirement to consider the balancing of interests at s 14E(2)(b) nor the discretionary elements at s 14F of the Act. Nonetheless, s 14F(s) considers "such other matters as the Court considers relevant in the circumstances of the case" and two issues introduced by the Applicants meet this description.

Excessive debris

1. In the application and during the hearing, the Applicants expressed annoyance and frustration over bamboo foliage overhanging the common boundary and dropping debris. Resistance by Ms Ivanhoe to the Applicants pruning overhanging foliage was unreasonable, and the Applicants may prune all bamboo foliage that extends beyond the boundary.
2. Regarding dropping debris, an expectation to undertake reasonable maintenance arising from urban trees was established in a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20]: 1. "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis." 2. "The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."

Growth of mould

1. Many applications in recent years have included mould growth allegedly caused by trees. Increased mould can largely be explained by above average and record rainfall associated with three consecutive La Niña weather cycles since 2020.
2. In Hendry v Olsson [2010] NSWLEC 1302 at [11]-[14], the maintenance expectation arising from Barker was extended to include the cleaning of mould and slime associated with urban trees. As a result, any claim of damage or unreasonable maintenance due to mould and slime is refused.

Conclusions

1. W1 and W2 faced west and thus could not receive direct morning sunlight. In winter, when the sun's arc is low in the northern sky, the north side neighbour's vegetation would be the primary cause of sunlight obstruction to W1 and W3 in the early afternoon. The tree would become the main sunlight obstructor in the late afternoon. When the sun is high in the sky in summer, however, sunlight to W1 and W3 would be barely impacted by the north side neighbour's vegetation but would be obstructed by the respondent's tree by mid-late afternoon.
2. Mr and Ms Smith did not include shadow diagrams to assist the Court's assessment of sunlight obstruction to windows, but my conclusion is consistent with the evidence in the Respondent's Shadow Study; that the tree, the north side neighbour's vegetation, and the slope, aspect, and relatively low level of the Applicants' land, are the primary causes of sunlight obstruction.
3. The bamboo would probably independently obstruct some sunlight and cast shadows onto the rear yard and windows, at some times of the year. Most of the shade from the bamboo, however, is cast within shadowing by other trees and structures and there is no remedy under the Act for obstruction of sunlight or views by individual amenity trees.
4. Under these circumstances, I am not satisfied that pruning or even removal of the bamboo would reduce obstruction of sunlight to the Applicants' nominated dwelling windows by more than a minor extent. The obstruction of sunlight by the bamboo is far less than severe.
5. As the jurisdiction is restricted to severe obstruction of "sunlight to a window of a dwelling situated on the applicant's land", s 14(E)(2)(a) of the Act was not satisfied. Therefore, the Court has no powers to make orders and the application under Pt 2A of the Act is refused.

Orders

1. The orders of the Court are: 1. The application is refused. …………………………. J Douglas 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: 20 March 2024